Coverage Pointers - Volume X, No. 18

Dear Coverage Pointers Subscribers:

As promised, Kathy Fijal has joined our ranks as a partner on our coverage team.  We're delighted to have her and she is already ensconced in new work and old.  She's a terrific addition if you haven't worked with her in the past; you'll surely enjoy her wise counsel and sound advice.  She has the practical approach to coverage and liability problems that you have come to enjoy.

Coverage, Coverage and More Coverage:

There are several fascinating decisions in the issue attached. 

• First of all, the Tower Insurance case from the First Department is another great discussion of late notice and what an insured must do to establish a reasonable belief of non-liability.  Each of these cases provides good counsel to claims professionals on the kind of investigation that ought to be undertaken in a late notice case.
• The Fieldston case, also from the First Department, comes with guest commentary from James Stewart.  He and Jeff Gold, the two lawyers who represented the winning side in this case, were able to convince the appellate court to require a D&O carrier to contribute, equitably, to defense costs incurred for a mutual insured.
• Everyone's talking about the Court of Appeals decision in Faso, which deals with health care carrier subrogation claims.  Earl Cantwell in his Earl's Pearls column, dissects that one for you.

LinkedIn:  Our interactive voice - the place where we can have ongoing public discussions on coverage issues, is the New York Insurance Coverage Group on LinkedIn  www.linkedin.com/groups?gid=1777061 .  Come by for a visit

Travel and Training:  We enjoyed a loverly trip to Hawaii for the FDCC winter meeting.  Sadly, winter hadn't quite ended before we returned home.   We did travel out to see our friends on the "Farm" in Long Island this week with a rollicking session on SUM coverage, AI Endorsements, Late Notice, and tasty sandwiches to boot.

56 Years Ago Today:  Joseph Stalin died on March 5, 1953 at 1:50 PM Eastern Time.  When the word trickled back to Brooklyn later that evening, Erna and Kurt, about to have their second offspring (who was to be a curly-haired baby boy) decided to discard "Joseph" as the name selected, due to the Stalin connection. Instead they selected "Dan" (named for one of the Twelve Tribes of Israel, son of Jacob and Bilah, Rachel's handmaiden [see, Genesis 30:4] and no relation to "Daniel" who later hung around in the lion's den). 

100 Years Ago Today - New York Times Want Ads, pg. 13, col. 1:

• WANTED - Young men for Insurance office work: salary $30 to $50 a month; bright, clean American. No advance charge. Lyon, 305 Broadway
• WANTED - Man and wife of good appearance and address to take charge of gentleman's country place; must be capable farmer and dairyman, economical and good manager; wife must be able to do plain cooking; comfortable dwelling on place; good salary.  Reply by letter giving experience, qualifications, etc.  Box E 13, Times Downtown

New York Times, Page 1
March 6, 1909
First Prisoner Takers under New
Health Board Law Gets a Reprimand

The first arrest of a Subway smoker was made last night when Louis Funcke of 280 Amsterdam Avenue was: taken in custody on the downtown station at Seventy-second Street by Special Officer Edward Flynn. In the Night Court Flynn told Magistrate Kernochan that Funcke was smoking on the platform and that when he requested him to stop, Funcke stepped aboard an express train. Flynn went into the car-after him, hauled him back to the platform and arrested him. Magistrate Kernochan discharged Funcke with a reprimand.

A recent ordinance passed by the Board of Health makes it a misdemeanor to carry lighted cigars, cigarettes or pipes into any Subway station. 

Editors Note:  Magistrate (later Judge) Kernochan became a good friend of Franklin Roosevelt and was on the dais with FDR on February 13, 1933 when Giuseppe Zangara fired shots in the direction of President-Elect Franklin Roosevelt. FDR was not hit, but Zangara killed Mayor Anton Cernak of Chicago.  Cernak's words to FDR, I'm glad it was me and not you, Mr. President, are inscribed on a plaque in Bayfront Park in Miami, where the shooting took place.

From Audrey Seeley, the Queen of No Fault:
Greetings from Las Vegas!  The weather is not as nice as Hawaii but I'm not in Buffalo!

My column is brief this edition so I would like to take the opportunity to remind everyone, yet again, of a great insurance coverage seminar - DRI Insurance Coverage and Claims Institute from April 1 -3 in Chicago.  The program for the seminar this year has top notch education addressing many timely and practical topics for not only those who practice in insurance coverage but also those who practice in the toxic torts, commercial litigation, appellate, or professional liability areas.  There are topics such as preparing an insurance professional for a deposition, class actions and what coverage challenges they present to insurers, the use (and abuse) of summary judgment motions in insurance litigation, excess insurers' defense obligation, and jury selection techniques in insurance litigation.

This program will have a US Court of Appeals Judge speaking on coverage disputes and litigation.  It is my understanding that this Judge will be entertaining general questions from the audience.  This is a great and rare opportunity!  There will also be executives from two large insurers speaking on topics such as defense cost management in large exposure cases and the challenges insurers face with legitimate and not so legitimate claims after catastrophes.

This program also provides a great networking opportunity.  Aside from two receptions and a luncheon, there will be dine-arounds where you can network in smaller groups over dinner.  Finally, please note that you do not have to be a DRI member to attend this seminar.  It is open to all for attendance.  If you need additional information please do not hesitate to email me at [email protected].  Likewise, if you are attending this program please let me know as I will be attending and would enjoy catching up with you.

Audrey 

From Steve Peiper, the Prince of Property:
Greetings, and thanks again to those brave few who joined us at the Bad Faith Seminar in Syracuse last week.  For those of you who missed it, please do not hesitate to give us a call. With Spring Training season just starting, we'd be happy to put something together for you.

Although it is never planned, it seems as though we always have a theme.  This week is no different as I review three totally distinct cases all of which address, on some level, the Workers' Compensation Law's intersection with coverage issues.  The First Department reminds us that the protection provided by Section 11 can be waived if not timely raised, as well as reminding us that it has no impact on claim based on contractual indemnity provision.  While the Second Department looks at the interplay of Workers' Compensation coverage and the Anti-Subrogation Rule. Of course, as always, there are few property cases thrown in for good measure. Contact me at [email protected].

Steve

This week in Coverage Pointers:

KOHANE'S COVERAGE CORNER
Dan D. Kohane
[email protected]

• Failure of Insured to Conduct Investigation Relating to Injuries and Potential Claim When It Knew of Accident is Fatal to "Reasonable Belief of Non-Liability Defense."  While Injured Party has Right to Give Notice, a Failure to Try to Ascertain Identity of Carrier Proves Fatal is a Breach of Injured Party's Obligations
• Lawsuit by Former Defense Counsel Against the Carrier that Retained Him, for Defamation and other Related Claims is Reinstated.  Defense Counsel Claims Carrier Fabricated Memos of Phone Calls to Try to Establish Defense Counsel's Malpractice and Squeeze Contribution from his E&O Carrier
• First Department Reverses Prior Decision and Holds that D&O and CGL Carriers Must Equitably Share in Defense Costs Where Both Forms of Coverage are Triggered
• Too Late to Disclaim
• Taxi Passenger Not Entitled to Coverage for Injuring Bicyclist when Alighting from Cab

 

MARGO'S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT

Margo M. Lagueras
[email protected]

• Dismissal Unanimously Affirmed
• Degenerative Disc Disease Is Not Inconsistent With Herniation
• Plaintiff's Deposition Testimony Wins Out Over Her Contradictory Affidavit
• Affirmation That Does Not Link Injury to Accident Fails to Establish Causation
• Findings of Degenerative Conditions Must Be Rebutted to Defeat a Summary Judgment Motion
• Claims Under the 90/180-Day Category Must Be Supported by Objective Evidence
• Range-of-Motion Limitations Quantified By Defendant's Experts Defeat Defendant's Motion
• A Fracture Is, As a Matter of Law, a "Serious Injury"
• Unaffirmed Report Is Not Competent Medical Evidence
• A Motion to Renew Must Include a Reasonable Justification
• Substantiate a Conclusion That Range-of-Motion Limitations Are "Self-Imposed"

 

AUDREY'S ANGLES ON NO-FAULT
Audrey Seeley
[email protected]
Arbitration

• Independent Evaluation Insufficient to Support Denial as Concludes MMI.

Litigation

• Tolling of Accrual of Statutory Interest Applies to Policyholders and Medical Providers

 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]

On Property

• Late Notice Destroys Coverage under a Creditor Reimbursement Policy
• No Coverage for Property Damage Caused by Earth Movement - Exclusion Means What it Says

 

and Potpourri

• Workers' Compensation Bar Does Not Apply to Separate Contractual Indemnity Obligations
• Where Not Timely Raised, Workers' Compensation Bar was Waived
• Anti-Subrogation Rule Does Not Bar Workers' Compensation Lien
• Broad Discovery Permitted in an E&O Case against a Third-Party Administrator

 

EARL'S PEARLS
Earl K. Cantwell, II
[email protected]

Health Care Subrogation Causes Headaches

All the best as you spring forward this weekend.

Dan

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York
NEWSLETTER EDITOR
Dan D. Kohane
[email protected]

INSURANCE COVERAGE TEAM
Dan D. Kohane, Team Leader
[email protected]
Michael F. Perley
Katherine A. Fijal
Audrey A. Seeley
Steven E. Peiper
Margo M. Lagueras

FIRE, FIRST-PARTY AND SUBROGATION TEAM
Andrea Schillaci, Team Leader
[email protected]
Jody E. Briandi
Steven E. Peiper

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader
[email protected]
Tasha Dandridge-Richburg
Margo M. Lagueras

APPELLATE TEAM
Jody E. Briandi, Team Leader
[email protected]
Scott M. Duquin

Index to Special Columns

Kohane’s Coverage Corner
Margo’s Musings on “Serious Injury”
 Audrey’s Angles on No Fault
Peiper on Property and Potpourri
Earl’s Pearls
Across Borders
Duquin -- The Duke of Lead

KOHANE’S COVERAGE CORNER

Dan D. Kohane
[email protected]

3/3/09            Tower Insurance Company of New York v. Jaison John Realty Corp. Appellate Division, First Department
Failure of Insured to Conduct Investigation Relating to Injuries and Potential Claim when It Knew of Accident is Fatal to “Reasonable Belief of Non-Liability Defense.”  While Injured Party has Right to Give Notice, a Failure to Try to Ascertain Identity of Carrier Proves Fatal is a Breach of Injured Party’s Obligations
Dias fell down a stairway in a building on 9/17/06.  Later that day, the landlord noticed that the stairway handrail had been removed and then still later on that day received a call from the policy that a person named Dias fell down the stairway.  The landlord did not get a copy of the police report that would have advised that Dias was taken away by ambulance due to a fall at the premises resulting from a loose stairway and that the police had removed the handrail

The landlord claimed that he saw Dias the day after the accident and spoke to her and that she appeared fine and did not mention the accident.  The landlord acknowledged that he never asked Dias what, if anything, had happened or whether she was injured.

The landlord first gave Tower notice some five months after the accident when Dias commenced the lawsuit. The court finds that these circumstances, particularly the missing handrail, establish that John's belief that Dias had not been injured and would not make a claim was unreasonable, and thus did not excuse the otherwise unreasonable five-month delay in giving notice of the accident. Again, as we have seen in several recent cases, whether the insured has inquired into circumstances of accident may be relevant on issue of reasonableness.
There was a 12/20/06 letter from Dias's counsel to the landlord, advising the landlord to notify his insurer of the accident, and that if counsel did not hear from the landlord’s insurer or legal representative within 20 days, Dias would commence an action. However, as Dias never attempted to ascertain the identity of the carrier (only relying upon the landlord to give notice, Dias’ notice is also late.
Editor’s Note:  Attaboy Max

2/26/09            Roche v. Claverack Cooperative Insurance Company
Appellate Division, Third Department
Lawsuit by Former Defense Counsel Against the Carrier that Retained Him, for Defamation and other Related Claims is Reinstated.  Defense Counsel Claims Carrier Fabricated Memos of Phone Calls to Try to Establish Defense Counsel’s Malpractice and Squeeze Contribution from his E&O Carrier
For 25 years, Claverack  retained Roche as its defense counsel to represent its insureds. As fate would have it, in one such wrongful death action, a jury found Claverack's insureds 75% liable on a $4 million plus judgment. Claverack retained counsel, who wrote to Zurich Insurance Company, Roche’s professional liability insurance carrier, placing Zurich on notice of a potential claim due to Roche’s alleged failure to keep Claverack apprised of the progression of the wrongful death matter and failure to settle the matter within policy limits. The letter sought Zurich's contribution to a post-judgment settlement in the wrongful death matter.

Claverack’s counsel attached to the letter six memoranda that Claverack alleged were contemporaneous records of telephone conversations between Roche and two of Claverack’s officers and directors, Hess and Buckley. Roche contends that the memoranda were fabricated to compel Zurich to contribute to the settlement, which Zurich offered to do.
Zurich then declined to renew Roche’s E&O policy. Roche then sued Claverack, Hess and Buckley, for defamation, defamation per se, injurious falsehood, prima facie tort, intentional infliction of emotional distress, fraud and conspiracy. Claverack, Hess and Buckely moved for summary judgment dismissing the complaint. Roche cross moved to disqualify the insurer’s counsel.
The defamation cause of action, dismissed by the lower court, is reinstated. To constitute defamation, plaintiff must prove that defendants made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se.  If the memoranda were in fact fabricated, since they implied that Roche did not convey settlement offers or attempt to settle within the policy limits and otherwise committed malpractice, they were not conveyed with good faith an alleged special damages (a deductible was now required under his malpractice insurance policy and pay a higher premium to a new company).
Likewise, the injurious falsehood cause of action stands. On that cause of action, plaintiff alleges that defendants conveyed false statements with an intent to harm plaintiff, and plaintiff was harmed due to those statements.  Roche contends that Hess and Buckley included false statements in the memoranda concerning phone conversations in which plaintiff was a participant, with the intent to force plaintiff or his insurance company to contribute to the settlement.
The fraud cause of action is likewise reinstated but the prima facie tort claim is not to establish this cause of action, Roche contends that defendants fabricated the memoranda to obtain money from plaintiff and Zurich. If the memoranda are legitimate, defendants are protected by the defense of truth. If they are false, plaintiff cannot establish the elements of prima facie tort because providing false statements to obtain money is not otherwise lawful. Thus, regardless of any factual question concerning the legitimacy of the memoranda, the prima facie tort cause of action was properly dismissed.
Due to plaintiff's failure to present medical evidence of severe emotional distress, intentional infliction of emotional distress claims are dismissed as are the conspiracy claim, since NY does not recognize such a claim.
The claims against Hess and Buckley are maintained as well.  If they fabricated the memoranda, as plaintiff claims, they were presumably acting outside their employment.
In his affidavit, defendants' counsel made his testimony relevant, by stating that the memoranda were in Claverack's file when he first reviewed it, months prior to the time when plaintiff alleges that the memoranda were fabricated. Thus, he may be a witness and cannot serve as counsel.
Editor’s Note:  It surely is not clear in NY that Claverack could have sued Roche for malpractice, even if it had been committed.  Watch for our article soon to be published on that very subject.

2/26/09            Fieldston Property Owners Assoc. Inc. v. Hermitage Ins. Co.
Appellate Division, First Department
First Department Reverses Prior Decision and Holds that D&O and CGL Carriers Must Equitably Share in Defense Costs Where Both Forms of Coverage are Triggered

With Special Thanks for this Guest Submission by James F. Stewart and Jeffrey B. Gold, Gold of Stewart, Kravatz, Benes & Stone, LLP, , Westbury, New York. who represented the successful D&O carrier in this case

A relatively common scenario in litigations brought against corporate directors and/or officers is that in addition to those claims clearly within the ambit of Directors and Officers ("D&O") coverage, the pleadings also assert one or a few claims that potentially fall within both D&O and Commercial General Liability ("CGL") coverage, or CGL coverage alone.  D&O carriers have often in such cases taken the position that their policy is excess to the CGL carrier‘s policy and that the CGL carrier is obligated to defend the entire litigation without contribution from the D&O carrier.  In support of this position, D&O carriers relied upon the Appellate Division, First Department‘s decision in Firemen‘s Ins. Co. of Washington D.C. v. Federal Ins. Co., 233 A.D.2d 193, 649 N.Y.S.2d 700 (1st Dept. 1996) (which found under the ISO "other insurance" clause language that was then typically contained within D&O and CGL policies that the D&O policy at issue was excess to the CGL policy with respect to a claim for which both policies provided concurrent coverage), and the well-established general principal of law that an insurer must defend the entire suit if any claim alleged therein falls within the coverage it provided.  Such practice by D&O carriers presented CGL carriers with the difficult and inequitable choice of either entirely defending what is essentially in truth a D&O action, or denying a defense and facing the legal and practical ramifications of such denial.  The Appellate Division, First Department‘s very recent decision in Fieldston Property Owners Assn., Inc. v. Hermitage Insurance Co. et. al., 2009 NY Slip. Opp. 01429 (1st Dept. February 26, 2009) ends this inequity.

The Fieldston case involved two consolidated declaratory judgment actions, which, in turn, arose out of two related underlying actions.  Both of the underlying actions asserted numerous claims falling solely within D&O coverage and one claim (sounding an injurious falsehood) which potentially fell within both D&O and CGL coverage.  The insured demanded coverage from both its D&O carrier, Federal Insurance Company ("Federal"), and its CGL carrier, Hermitage Insurance Company ("Heritage").  Federal took the position that its policy was excess to Hermitage‘s policy for reasons noted above. Hermitage defended both underlying actions under full reservations of rights, and sought to recover the defense costs it incurred, in whole or in part, from Federal.  Both insurers moved for summary judgment.  The trial court granted Federal summary judgment in one of the declaratory judgment actions (relying upon Firemen‘s), and found that material questions of fact precluding summary judgment in favor of either insurer existed in the other declaratory judgment action.

The First Department reversed the trial court in both cases, finding that "Federal is obligated to reimburse Hermitage for Federal‘s equitable share of the reasonable costs incurred by Hermitage in defending" the underlying actions.  In doing so, the First Department effectively overruled Firemen‘s, stating "we refuse to follow our decision in Firemen‘s as it is not supported by the plain language of the ‘other insurance‘ clause in that case, and follow instead our more recent decision in Abax (12 A.D.3d 277) as it is in accordance with the plain language of the ‘other insurance‘ clause in this case, is consistent with Consolidated Edison Co. (98 N.Y.2d 208), which was decided after Firemen‘s, and resolves these disputes between insurers in a more sensible fashion."

The First Department further found that "[a]lthough the lack of support for Federal‘s position in the terms of the ‘other insurance‘ cause is sufficient basis for rejecting its position, other of its flaws should be noted [including the fact that] acceptance of Federal‘s position would create an incentive for co-insurers like Hermitage in similar disputes to act inconsistently with their broad duty to defend the insured."

Importantly, the First Department also appears to have "opened the door" to the allocation of defense costs based upon the number of claims that fall within each insurer‘s respective form of coverage, stating that:  "Accordingly, Hermitage is entitled to contribution from Federal for Federal‘s equitable share of all the defense costs incurred by Hermitage, except for the costs Hermitage incurred in defending against the injurious falsehood claims if those claims are covered by both policies or covered solely by the CGL policy."  If so construed and followed by other courts, such would represent a major shift in New York law concerning the allocation of defense costs.

In any case, as expressly noted by the First Department, D&O carriers are no longer entitled to a "free ride" where an underlying action asserts both D&O and CGL claims, and CGL carriers should seriously consider reassessing their rights to seek contribution of defense costs from D&O carriers in such cases.  

2/26/09            Diaz v. Lexington Exclusive Corp.
Appellate Division, First Department
The Term “Reimbursement by Insurance” in Lease Means what it Says
Goldman, the landlord had a lease with Lexington, the tenant.  The tenant was supposed to secure  liability insurance for the landlord’s benefit.  The lease required the tenant to indemnify the landlord for all damages not reimbursed by insurance. Lexington, the tenant, contended that the clause allows for the Goldmans' reimbursement under any insurance policy, including its own.  Whose insurance are we talking about?   Only the tenants?  The landlords?
The Appellate Division found that the term "reimbursed by insurance," means just that, without regard to any specific source of coverage. Out-of-pocket expenses incurred in obtaining insurance are recoverable as damages for breaches of agreements to procure insurance, but those damages were not sought.  Accordingly, landlord’s claims for indemnity against tenant are dismissed.

2/24/09            161 Hudson, LLC v. Sirius America Insurance Company
Appellate Division, Second Department
Too Late to Disclaim
Failure to timely disclaim lead to inability to rely on policy exclusions and policy conditions.  Familiar refrain, indeed.

2/24/09            Kohl v. American Transit Insurance Company
Appellate Division, Second Department
Taxi Passenger Not Entitled to Coverage for Injuring Bicyclist when Alighting from Cab
Interesting case.  Passenger opened door of taxi and injured bicyclist who struck door.  Court held that policy for cab, issued under Vehicle & Traffic Law Section 370, only needs to insure owner and operator of cab and not passenger, so passenger is not entitled to a defense.  Cases cited by court acknowledge that exiting car is part of use and operation of vehicle so there will be coverage for owner and operator.
Editor’s Note:  I’d love to see the policy on this one.

MARGO’S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT

Margo M. Lagueras
[email protected]

2/24/09            Charley v. Goss
Court of Appeals
Dismissal Unanimously Affirmed
Although without much comment, the Court of Appeals affirmed finding that the defendants carried their burden establishing that the plaintiff did not sustain a serious injury through the submission of the plaintiff’s own deposition testimony and medical records.

Note:  The decision of the First Department here affirmed was treated in depth in the 9/05/08 issue of Coverage Pointers and makes for a good review.

3/5/09              Escobar v. Guzman
Appellate Division, First Department
Degenerative Disc Disease Is Not Inconsistent With Herniation
While defendants’ expert concluded that plaintiff suffered from degenerative disc disease, plaintiff’s expert raised a triable issue of fact with a contemporaneous MRI report of herniated discs.  The court determined the two are not inconsistent.

3/5/09              Cruz v. Aponte
Appellate Division, First Department
Plaintiff’s Deposition Testimony Wins Out Over Her Contradictory Affidavit
With respect to plaintiff’s claim under the 90/180-day category, defendant submitted plaintiff’s own deposition testimony in which she stated that she was unable to perform her usual and customary activities for only five weeks following the accident.  In contrast, in opposition to defendant’s motion for summary judgment, plaintiff submitted an affidavit stating she was restricted for five months.  Faced with the contradiction, the court determined that plaintiff’s affidavit “appears to have been tailored to avoid [the deposition testimony’s] consequences.”
Furthermore, the affidavit was not supported by the requisite competent medical proof.

2/26/09            Dembele v. Cambisaca
Appellate Division, First Department
Affirmation That Does Not Link Injury to Accident Fails to Establish Causation
Plaintiff’s radiologist’s affirmation was based on a 2005 MRI and failed to rebut the defendant’s orthopedist’s findings, based on a 2006 examination that the sprain had resolved and there was no disability.  Worse still, the radiologist did not link plaintiff’s torn meniscus to the accident to establish causation, or present evidence of limitations, necessary to show “serious injury.”  Plaintiff’s orthopedist did no better because he did not explain his findings with respect to plaintiff’s left knee range-of-motion, nor did he compare with what is normal.  His conclusions also were inadmissible on evidentiary grounds as he in part relied on unsworn medical reports which had not been submitted or relied on by defendant’s doctors.

2/26/09            Russell v. Mitchell
Appellate Division, First Department
Findings of Degenerative Conditions Must Be Rebutted to Defeat a Summary Judgment Motion
On appeal, defendant won a reversal as the Appellate Court determined that he established, through the submission of affirmed reports of an orthopedist, a neurologist and a radiologist, that plaintiff’s sprain injuries had resolved, that she had full range-of-motion in her cervical and lumbar spines and shoulders, and that the claimed injuries were the result of a degenerative condition and not the motor vehicle accident.  Plaintiff did not present any evidence to rebut these findings, and in particular did not rebut the radiologist’s opinion that the growth seen on the MRI was degenerative and developed over time.

2/24/09            Manon v. Doucoure
Appellate Division, First Department
Claims Under the 90/180-Day Category Must Be Supported by Objective Evidence
Here plaintiff had a 3-year gap in treatment helped supported defendants’ arguments that plaintiff did not sustain either a permanent or non-permanent injury, but rather that the spinal and shoulder injuries resolved within 2 months after the accident.  In addition, the court once again rejects a 90/180-day claim where it is not supported by objective evidence of “a medically determined injury or impairment of a non-permanent nature.” 

Note:  It should be clear by now that subjective complaints of pain and self-serving affidavits or deposition testimony simply do not cut it, particularly where there is virtually no time lost from work.

2/24/09            Desir v. Castillo
Appellate Division, Second Department
Range-of-Motion Limitations Quantified By Defendant’s Experts Defeat Defendant’s Motion
Plaintiff Desir’s appeal was dismissed as not aggrieved, but plaintiff Lange raised a triable issue of fact by submitting objective medical evidence which included her treating physician’s affirmation and the affirmations of defendant’s physicians who examined her in response to the motion for summary judgment and quantified their findings of range-of-motion limitations in her cervical and lumbar spines, and knee.

2/24/09            Lopez v. Beltre
Appellate Division, Second Department
A Facture Is, As a Matter of Law, a “Serious Injury”
The infant plaintiff was crossing the street after school when he was struck by a vehicle attempting to make a left turn and operated by defendant Beltre.  Also named as a defendant was the Village of Port Chester that had situated a crossing guard at the intersection at issue which was also controlled by a traffic signal.  The trial court granted defendant Village’s summary judgment motion dismissing the complaint as against it and denying, as academic, plaintiffs’ cross motion to dismiss the affirmative defenses in Village’s answer that plaintiff was comparatively negligent and did not sustain a serious injury.

The Appellate Court modifies.  First, it finds that, under these circumstances, the Village assumed a special relationship with the plaintiff, who raised issues of fact with respect to the respective locations of the plaintiff, the vehicle, and the crossing guard, as well as questions as to what the guard did or did not see and do.  Because there was conflicting evidence as to whether plaintiff was in the crosswalk or 20 feet away from it, the trial court was correct in not dismissing Village’s affirmative defense of comparative negligence.  However, the affirmative defense of no serious injury should have been dismissed because plaintiff sustained, among other injuries, a fracture.

2/24/09            Perez v. Santiago
Appellate Division, Second Department
Unaffirmed Report Is Not Competent Medical Evidence
The trial court denial of defendants motion is reversed on appeal where plaintiff’s opposition to defendants’ motion consisted of the unaffirmed report of her treating physician which, in addition, was based on examinations of plaintiff performed approximately three years prior to the motion for summary judgment.  In addition, no explanation was given for the three-year gap in time between plaintiff’s cessation of treatment and the recent examination of the physician who examined her for purposes of opposing the motion for summary judgment, nor was any evidence offered of alleged disc bulges or herniations. 

2/24/09            Sobin v. Tylutki
Appellate Division, Second Department
A Motion to Renew Must Include a Reasonable Justification
Plaintiff was the fourth vehicles removed in a chain-reaction rear-end collisions which occurred at a red light and thus sued everyone behind her.  She then made a motion for leave to renew her opposition to the motion of Tylutki, the driver of the vehicle that started it all, for summary judgment that she did not sustain a serious injury.  On appeal, the denial of the trial court is affirmed as “[t]he Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion,” and here plaintiff knew of the additional facts at the time of her original motion but failed to offer any reasonable justification for not submitting them at that time.

1/24/09            Torres v. Garcia
Appellate Division, Second Department
Substantiate a Conclusion That Range-of-Motion Limitations Are “Self-Imposed”
And with objective medical evidence, something defendants’ orthopedic surgeon did not do, with the result that defendants failed to meet their prima facie burden and plaintiff’s evidence is not put to the test.

AUDREY’S ANGLES ON NO-FAULT
Audrey Seeley
[email protected]

Arbitration

2/27/09In the Matter of the Arbitration Between Charles D. Coyle DC and Preferred Mut. Ins. Co.
Arbitrator Veronica K. O’Connor (Erie County)
Independent Evaluation Insufficient to Support Denial as Concludes MMI.
The Applicant, medical provider, sought reimbursement of chiropractic services rendered to the eligible injured person (“EIP”) arising out of a June 20, 2003, motor vehicle accident.  The initial issue was whether the Applicant had standing to proceed with the arbitration.  The insurer argued that there was no valid assignment of benefits on file.  The NF-3 that was initially submitted to the insurer, dated August 21, 2003, indicated that with respect to direction to pay and assignment of benefits the EIP’s signature was on file.  The insurer did not request additional verification on the issue of the EIP’s signature on file or to clarify the assignment of benefits versus authorization to pay.  The assigned arbitrator held that the insurer’s failure to request additional verification on this issue constituted a waiver of the standing defense under Hospital for Joint Diseases v. Travelers Prop. Ca. Ins.  The insurer did provide a signed authorization to pay but that authorization was dated September 26, 2008, and would not apply to the billing at issue in this arbitration.

Turning to the issue of whether the chiropractic treatment was properly denied, it was noted that the EIP began a course of chiropractic care after her motor vehicle accident, with her chiropractic that had been her chiropractor for at least 10 years.  On July 31, 2006, the EIP underwent an independent chiropractic examination with Geoffrey Gerow, D.C.  Mr. Gerow concluded that the EIP should continue chiropractic care one to two times per week for the next three months.  On August 21, 2006, the EIP was re-examined by Mr. Gerow who concluded that she needed continuing chiropractic care one time per every two weeks for the next three months.  On April 12, 2007, the EIP was re-examined by Mr. Gerow who noted that it had been four years since her accident.  During that four year period, the EIP had undergone chiropractic care, orthopedic and neurosurgical evaluations, surgical intervention and massage therapy.  Upon examination, the EIP reported that she was receiving transient relief from the chiropractic care and overall felt the same since her last independent examination.  None of the examinations revealed any substantive improvement since the EIP’s last examination.  Mr. Gerow concluded that the EIP benefits as much as she was going to from chiropractic care and no further care was necessary or required as related to the June 20, 2003, accident.

On July 11, 2007, Mr. Gerow was asked to review additional medical documentation.  Mr. Gerow reviewed a lumbosacral MRI report that revealed disc herniations from T9-L1.  There were post operative changes at L3/4 and stenosis at L4/5.  The EIP advised Mr. Gerow that she discovered new disc herniations yet they were present on previous MRI studies.  Mr. Gerow opined that the reason other disc herniations were only recently discovered was attributed to higher resolution MRI machines.  Mr. Gerow further opined the question was whether chiropractic care would result in the EIP medically improving even with the herniations being known.  Mr. Gerow concluded that “there does come a point in time when patients no longer make progress under chiropractic care.  It is my opinion that this time has arrived for [the Assignor]…”

The arbitrator upheld the insurer’s denial of chiropractic care from March 13, 2007 through April 2, 2007, as the Applicant failed to submit adequate evidence to refute Mr. Gerow’s conclusion.  However, with respect to the remaining service dates, Mr. Gerow’s conclusion was determined to have stated that the EIP reached “maximum medical improvement.”  This is not a recognized basis for discontinuing chiropractic care.

Litigation
2/17/09 Great Wall Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Tolling of Accrual of Statutory Interest Applies to Policyholders and Medical Providers
The insurer’s summary judgment motion on the basis of plaintiff’s assignor (“plaintiff”) failed to appear for scheduled examinations under oath (“EUO”) should have been granted with the complaint dismissed.  The plaintiff’s argument that the EUO scheduling letters were ineffective as they were mailed to an attorney and not plaintiff lacked merit.  This is because the attorney that received the EUO scheduling letter had contacted the insurer’s counsel prior to the EUO scheduling letter being sent advising of the attorney’s representation of the plaintiff.

The insurer’s motion papers sufficiently demonstrated that the insurance policy in effect on the date of the accident contained an endorsement authorizing verification by an EUO.  Further, the insurer was not required to the schedule the EUO within 30 days of receiving plaintiff’s claim pursuant to the emergency first amendment to the revised insurance regulations.  Also, the insurer demonstrated that the scheduled EUO was reasonable and plaintiff failed to appear for same.

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]

Of Property
2/26/09            Wells Fargo Bank, N.A. v Zurich American Insurance Company
Appellate Division, First Department
Late Notice Destroys Coverage under a Creditor Reimbursement Policy
In this case, Wells Fargo had a very specific policy of insurance through Zurich which basically covered Wells Fargo, as a creditor, when a borrower defaulted and the insured collateral sustained a decrease in value due to an “environmental issue.”  As part of the conditions to coverage under the policy, the insured was required to provide a very detailed notice statement.  Because the notice that Wells Fargo provided did not comply with all of the enumerated requirements under the policy, the First Department ruled that the notice provision, as drafted, had been breached thereby vitiating coverage. 

The Court also noted that even if Wells Fargo’s notice was sufficient, its claim for coverage still would have been denied because it failed to establish recoverable damages.

02/17/09            I & R Realty Management, Inc. v Transcontinental Ins. Co.
Appellate Division, Second Department
No Coverage for Property Damage Caused by Earth Movement – Exclusion Means What it Says
In a short decision, the Second Department again upheld that viability of the “earth movement” exclusion where the defendant established that the claimed property damage arose from….earth movement. 

and Potpourri
03/03/09            Steven Gary v  Flair Beverage Corp.
Appellate Division, First Department
Workers’ Compensation Bar Does Not Apply to Separate Contractual Indemnity Obligations
Plaintiff commenced this action against Flair Beverage Corp and 3835 9th Ave. Corp.  As Flair Beverage Corp did not enter into a contract for work, nor direct or control plaintiff’s work, all claims asserted against it were dismissed.  However, the Court found a question of fact regarding whether plaintiff was performing work or repairs at the time of the incident, and as such plaintiff’s Labor Law § 240(1) against the owner, 3835 9th Ave. Corp., survived.  In addition, the Court found a question of fact related to plaintiff’s claims of Labor Law § 241(6) violations.

As part of the third-party action, 3835 9th Ave. Corp moved for a conditional order of summary judgment against third party defendant Broadway Beer & Soda.  Broadway opposed by arguing that (a) all indemnity claims were barred by operation of Workers’ Compensation Law § 11; (b)  that indemnity provisions in the lease were in violation of the General Obligations Law; and, (c) to be valid the contractual indemnity provision also must limit recovery to the amount of available coverage.  Not surprisingly, the Court was not swayed by any of these arguments, and the conditional order was granted.   

03/03/09            Miraglia, v H & L Holding Corp
Appellate Division, First Department
Where Not Timely Raised, Workers’ Compensation Bar was Waived
A little bit of background on this one first.  Plaintiff was an employee of Lane & Sons Construction Corp., when he sustained serious injuries while in the course of his employment.  Plaintiff then commenced an action against the owner of the premises, H&L Holding, under the Labor Law.  Prior to trial, H&L obtained an order of indemnification against Lane & Sons, and Lane & Sons’ carrier assumed the defense of H&L at the trial.  Finally, H&L filed for dissolution and effectively vanished from the picture. 
Importantly, the judgment H&L obtained against Lane & Sons provided that plaintiff could also enforce it.  At that time, Lane & Sons raised no objection to plaintiff being provided a right to enforce an indemnity provision to which it was never a party.  In any event, plaintiff now seeks to enforce this indemnity right against Lane & Sons. 

In response, Lane & Sons argues that the exclusivity protections of the Workers’ Compensation Law bar any claim made by the plaintiff.  The First Department ruled that because Lane & Sons never raised the defense prior to the trial, it had effectively waived the exclusivity protections offered by the Workers’ Compensation Law.  In so holding, the Court also swatted down Lane & Sons arguments that the trial court did not possess subject matter jurisdiction or personal jurisdiction over the claim.

02/24/09            John Romano v Whitehall Properties, LLC, et al.
Appellate Division, Second Department
Anti-Subrogation Rule Does Not Bar Workers’ Compensation Lien
In this case, Travelers issued both the primary Commercial General Liability Policy, as well as the Workers’ Compensation Coverage to Sorbara Construction Company.  As part of a settlement with Sorbara’s injured employee, Mr. Romano, Travelers contributed the entirety of its $2,000,000 policy limit.  The rest, apparently, was contributed by the carrier to co-defendant Whitehall. 

The workers’ compensation policy, thereafter, asserted a lien, principally against the Whitehall’s carrier.  The carrier (unnamed by the Second Department by the way) sought to dismiss Travelers’ compensation lien was barred by the anti-subrogation rule.  Not quite said the Second Department, because Travelers’ (workers’ compensation policy) did not insure the same risk as Travelers (CGL policy) the anti-subrogation rule was inapplicable.

02/19/09            Clarendon National Ins. Co. v  Atlantic Risk Management, Inc.
Appellate Division,  First Department
Broad Discovery Permitted in an E&O Case against a Third-Party Administrator
In this matter, it appears that Clarendon commenced an action against its Third-Party Administrator, Atlantic Risk, based, in part, on poor claims handling.  In discovery, Atlantic asked for production of all claims files containing, among others, the keyword “coverage.”  Understandably the First Department held that these requests were, on their face, unduly burdensome and overly broad.

However, because plaintiff’s claims were premised, in part, on plaintiff relying upon the advice and counsel of Atlantic, the Court held that files handled by Atlantic were discoverable.  Thus, as a balance, the First Department ordered that Clarendon produce copies of every file where Atlantic acted as the third-party administrator. 

EARL’S PEARLS

Earl K. Cantwell, II
[email protected]

Health Care Subrogation Causes Headaches

On February 24, 2009, the New York Court of Appeals issued a major decision with respect to the viability of health care subrogation claims in the context of personal injury actions and settlements.  The case was Fasso v. Doerr, 2009 N.Y. Slip Op. 01320 (2009), which was decided by a 6-0 vote.  This decision has major repercussions for personal injury practitioners with respect to the existence, viability, and treatment of health care subrogation claims in the context of current New York State practice.

The case arose from medical malpractice litigation, and the plaintiff incurred approximately $780,000.00 in medical and surgical expenses which were paid by her health insurance carrier, Independent Health Association, Inc. (“IHA”).  IHA moved to intervene in the medical malpractice action pursuant to CPLR 1013 to assert an equitable subrogation claim against the malpractice defendants for reimbursement of payments made for Ms. Fasso’s medical care and treatment.  Apparently, no one opposed the intervention and the trial court allowed IHA to become a party to the case under CPLR 1013. 

The plaintiff eventually sought summary judgment seeking to dismiss IHA’s complaint for equitable subrogation, but that motion was denied.  After one day of trial, the plaintiffs and the defendants advised the court that a settlement had been reached whereby the plaintiffs would receive $900,000 out of the $2,000,000 of malpractice coverage available on the claim.  IHA moved for a mistrial so that it could obtain its own witnesses to prove up the alleged malpractice.  This was denied by the trial court, which also held that IHA’s subrogation claim could not survive and dismissed the subrogation complaint.  The Appellate Division affirmed; the Court of Appeals granted leave to hear the case and reversed the trial and appellate courts. 

Essentially, the Court of Appeals held that a cause of action for equitable subrogation accrues to the health insurer, allowing the insurer to seek recoupment of its costs for medical care and treatment.  The Court of Appeals further held that the injured party and the tortfeasor cannot agree to a settlement that extinguishes the insurer’s rights.  The subrogation claim could not be “discontinued” or voided without IHA’s consent. 

The Court of Appeals began by stating a basic rule that, when an insurer pays for losses sustained by its insured that were occasioned by a wrongdoer, the insurer is entitled to seek recovery of the monies it expended under the doctrine of equitable subrogation.  There is (at least) one important limitation to potential recovery under the doctrine of equitable subrogation:  if the sources of recovery ultimately available are not adequate to fully compensate the insured for the loss, then the insurer has no right to share in the proceeds of the insured’s recovery.  In other words, the insurer may seek subrogation only against funds and assets that remain after the insured has been “made whole” or completely compensated.  This designation of priority interests, referred to as the “made whole rule”, assures that an injured party’s claim takes precedence over an insurance company’s derivative subrogation rights.

The plaintiffs and the medical malpractice defendants in Fasso contended that the “made whole rule” precluded IHA from pursuing its claim because the plaintiffs allegedly settled for less than the total claimed damages caused by the alleged negligence.  The Court of Appeals disagreed with this interpretation of the “made whole rule”.  If the recovery the injured party receives, whether by settlement or verdict, is greater than the wrongdoer’s assets and/or available insurance coverage, there is nothing left for the insurer to execute its subrogation rights against and, in that situation, the “made whole rule” prevents the insurer from sharing in any judgment or recovery.  But that was not the situation in Fasso.  The plaintiffs settled for approximately $900,000, leaving some $1.1 Million in remaining insurance coverage and, consequently, the “made whole rule” did not mandate dismissal of IHA’s equitable subrogation claim merely because plaintiffs accepted a settlement below their claimed damages.

The other argument raised against the health insurer was that, by definition of subrogation, the settlement agreement attempting to cut out the health insurer was binding because the insurer only stands “in the shoes” of its insured and acquires only those rights that the insured possesses.  The Court of Appeals also struck down this argument, stating it misapprehends the nature of equitable subrogation.  The right to subrogation accrues upon payment of the loss by the insurer, and it generally cannot be imperiled by the insured.  Once an insurer has paid a claim and the tortfeasor knows or should have known that a right of subrogation exists, the wrongdoer and the insured cannot agree to terminate the insurer’s claim without its consent -- such an agreement cannot be asserted as a defense to the insurer’s equitable cause of action. 

The Court of Appeals, therefore, reversed and remanded the case to Supreme Court for further proceedings, presumably potential trial on the issue of liability and damages with respect to the alleged medical malpractice and proof of IHA’s claim for some $780,000 in paid medical expenses. 

The Court of Appeals then took the unusual step of pointing out the legal and practical problems of its own holding in the context of current New York civil practice. 

The Court of Appeals noted that New York courts have disagreed on the issue of whether it was permissible to grant intervention to health insurers of injured parties in tort cases.  One view is that participation by the insurers in the primary case, particularly in settlement negotiations, creates conflicts of interest which often make settlement and trial more difficult.  Taking a contrary view, the Fourth Department has permitted discretionary intervention under CPLR 1013.  The Court of Appeals noted that allowing the insurer to intervene inevitably complicates settlement negotiations and creates other problems for the trial courts. 

In this case, no party opposed IHA’s motion to intervene, so the issue of whether intervention was properly granted was not before the Court.  The Court of Appeals explicitly noted that the question of permissive intervention raises competing policy concerns “that are deserving of legislative consideration.”  It was also noted that health insurers in New York have increasingly invoked the subrogation doctrine in an effort to recoup money and protect assets, so that a great deal of uncertainty has emerged regarding whether, how, and when health insurers can assert such subrogation claims.

The Court of Appeals further noted the apparent conflict with CPLR 4545 dealing with the “collateral source” rule.  Intervention and claims by health insurers are theoretically and practically at odds with the collateral source rule since, if the plaintiff could not recover for expenses paid by private insurance sources, it makes no procedural or practical sense to allow the health insurer to do via subrogation what its insured cannot directly do because of the collateral source rule.  Again, the Court of Appeals presented a direct appeal to the Legislature:  “Consequently, the Legislature may wish to reexamine the concept of permissible intervention under CPLR 1013 as it applies to personal injury actions involving a health insurer’s claim of equitable subrogation.”

The Court of Appeals also alluded to at least three other legal, conceptual and practical problems:

• First, IHA could have instituted its own action directly to recover the sums it paid, but by the time it became involved in the Fasso case, the statute of limitations had run.  Therefore, IHA decided to request intervention on the basis that it would “relate back” to Ms. Fasso’s complaint since the claims would be based on the same “transactions or occurrences.”  This also raises the issue about what statute of limitations applies to these health care claims.  In Fasso, the health insurer was allowed to extend its statute of limitations by intervening in the existing medical malpractice case, but other courts have held that the health insurer is bound by the same statute of limitations as the plaintiff because, after all, the health insurer “stands in the shoes” of the plaintiff, its insured.  Again, legislative action may be required to prevent health insurers from intervening in cases several years after any statute of limitations has expired under the “relation back” theory.

 

• Second, the Court, in a footnote, also noted the problem and burden of litigation expenses since, when the health insurer is allowed to intervene, it usually remains in the background of the case imposing on the insured the costs of prosecuting the claim and proving the defendant’s wrongdoing only to help and benefit the health insurer.  The essential question is if the health insurer is allowed and permitted to intervene, why and how does it get a free ride on the plaintiff’s litigation expenses in asserting its claim?
  
• Third, the Fasso litigation in its discussion relates only to equitable subrogation claims and, in many instances, there is also a contract-based theory of subrogation written into health care plan contracts that gives the health insurer a contractual subrogation claim, and also contains contractual provisions, for example, precluding an insured from  settling out a claim to the detriment of the health insurer.  Whether and to what extent the Fasso analysis would apply in such a contractual subrogation setting is not discussed and left for the proverbial other day.

Some lessons and notes to be learned from Fasso are these:

• The Court of Appeals has accepted the existence and viability of health care subrogation rights. 
• If you do not want the health care insurer in your litigation, it may be best to oppose the intervention motion citing perhaps late action by the health insurer, claims being barred by the statute of limitations, and the conflicts of interest that will arise in allowing the health insurer to assert its claim in the same litigation.  This may be particularly true if the statute of limitations has expired and the only way the health insurance company can make a claim is by intervention in an already existing action and cannot commence its own subrogation action.
• If you are an insurance company or defendant drafting or reviewing a personal injury release, you may need to include a provision whereby the plaintiff represents that no claim exists or has been commenced for subrogation by their health insurance carrier and, at a minimum, providing for indemnity and protection against any such health insurance claim which might be initiated post-settlement or release. 
• As a matter of drafting, to preclude or bar an existing or potential claim by the health insurer, the settlement or release papers may want to stipulate that there are no other or more assets or coverage available to pay the claim and that the injured party is thereby being “made whole” to the extent of assets or coverage, especially if there are coverage issue or potential limitations such as a reservation of rights. 

Given the Court of Appeals decision in Fasso, it is at least theoretically possible that a plaintiff could settle his or her claim for an amount below the available insurance coverage only to have the health insurer appear later, either in the same case or by commencing a new case, claiming that an independent subrogation action exists for recoupment of medical costs and expenses.  Legislative action indeed may be required since the existence and assertion of the health insurer’s equitable subrogation rights is at odds with the legal and practical purposes of the collateral source rule CPLR 4545.  If the injured party in their case in chief could not prove up and recover expenses and costs paid for by the health insurance carrier, it is defeating of those purposes to allow the health insurer to prove up and recover those costs and expenses against the same parties, either in the primary case or a separate subrogation action. 

DUQUIN – THE DUKE OF LEAD

Scott M. Duquin
[email protected] 

LEAD: The Lingering Litigation

Stay tuned.

ACROSS BORDERS

2/27/09            First Specialty Ins. Co. v. American Home Assurance Co.
First Circuit
Joint Operation of Tug and Barge Fall under Insurance Policy’s “Watercraft” Exclusion
The First Circuit affirmed the district court’s finding that the insurance policy’s “watercraft” exclusion barred recovery for an accidental grounding that occurred while a tug was pulling a barge. Although the court found that the tug on its own was not excluded, the tug and barge operating together fell under the watercraft exclusion of the policy. The court held that the “clear purpose of a watercraft exclusion is to limit the scope of the risk of such insurance, so as to avoid the greater financial risk arising from accidents involving larger watercraft. Though the operation of a tug alone might not entail such risks, the risks of financial loss from a maritime accident clearly increased when the tug and barge were joined and operated together.”
Submitted by: Sedgwick, Detert, Moran & Arnold LLP (Bruce D. Celebrezze & Michelle Y. McIsaac)

2/19/09            Livsey v. Mercury Insurance Group
New Jersey Supreme Court
UM Policy Affords No Coverage for Drive-By Shooting Victim
The New Jersey Supreme Court reversed the decision of the Appellate Division, which, relying on the New Jersey personal injury protection (PIP) statute, found that the uninsured motorist policy for the victim of a drive-by shooting afforded coverage for her resulting injuries. The court’s majority found the reliance by the Appellate Division upon the language of PIP statute to be unsupportable due to the stark differences in the language and purpose of UM and PIP statutes. The court ruled that the required substantial connection between the use of the uninsured vehicle and the plaintiff’s injuries under the UM statute was not present here. Thus, no coverage could be afforded.
Submitted by: Gerald A. Melchiode, Galloway, Johnson, Tompkins, Burr and Smith.

REPORTED DECISIONS

Charley v. Goss

Submitted by Thomas B. Grunfeld, for appellant.
Submitted by Alison M. K. Lee, for respondent.

MEMORANDUM:
The order of the Appellate Division should be affirmed with costs.
Defendants Howard Conroy and Margaret Goss presented prima facie evidence, including plaintiff's deposition testimony and medical records, that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). In opposition, plaintiff failed to raise a triable issue of fact.

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, in a memorandum. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones  concur.
Dembele v. Cambisaca

Antin, Ehrlich & Epstein, P.C., New York (Thomas P. Kinney
of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondent.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered September 25, 2007, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant met his prima facie burden by demonstrating that plaintiff had not suffered a serious injury within the meaning of Insurance Law § 5102(d) with, among other things, the affirmations of his orthopedist and neurologist (see Brown v Achy, 9 AD3d 30, 31 [2004]). Plaintiff's radiologist's affirmation, based on a March 2005 MRI, could not rebut defendant's orthopedist's findings of a resolved sprain, and no disability, based on a September 2006 examination (see Thompson v Ramnarine, 40 AD3d 360, 360-361 [2007]). Additionally, plaintiff's radiologist made no findings as to causation of the injury and did not link the torn meniscus to plaintiff's accident (see Otero v 971 Only U, Inc., 36 AD3d 430, 431 [2007]); Medley v Lopez, 7 AD3d 470 [2004]). At any rate, the existence of a partial meniscal tear, standing alone and with no evidence of any limitations caused thereby, is not sufficient to establish "serious injury" (see Cornelius v Cintas Corp., 50 AD3d 1085, 1087 [2008]; Medina v Medina, 49 AD3d 335 [2008]). Moreover, even if substantiated, plaintiff's complaints that, among other things, his knee hurts when he drives or walks up more than four steps, do not constitute the loss of "substantially all" of his usual activities required to make a showing of serious injury.
The affirmation of plaintiff's orthopedist also fails to raise an issue of fact as to permanent injury, as he does not explain the significance of his findings with respect to plaintiff's left knee's range of motion (ROM), or provide any comparison of his ROM findings with normal ranges (see Otero, 36 AD3d at 431). The orthopedist's conclusions are also inadmissible to the extent that they are based on the unsworn medical records and reports, since defendant's doctors did not submit copies of those unsworn papers with their reports, or expressly rely upon them in forming their own conclusions (see Hernandez v Almanzar, 32 AD3d 360, 361 [2006]).
Without any substantiating documentation or affidavit from the employer, plaintiff's vague and self-serving deposition testimony, that he did not return to work until "three or four months" after the accident, does not suffice to show a "serious injury" for purposes of the 90/180 day rule (see Burke v Torres, 8 AD3d 118, 119 [2004]).
Manon v. Doucoure

Belovin & Franzblau, LLP, Bronx (David A. Karlin of
counsel), for appellant.
Richard T. Lau & Associates, Jericho (Joseph G. Gallo of
counsel), for respondents.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered December 17, 2007, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants established prima facie that plaintiff did not sustain a serious injury of either a permanent or a non-permanent nature by submitting medical evidence indicating that his spinal and shoulder injuries had resolved within two months after the accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). In opposition, plaintiff failed to adequately explain the three-year gap in his treatment (see Pommells v Perez, 4 NY3d 566, 574 [2005]). As to the "90/180" category, plaintiff failed to support his claim with objective evidence of a "medically
determined injury or impairment of a non-permanent nature" (Insurance Law § 5102[d]) (Toure at 357).
Russell v. Mitchell

Richard T. Lau & Associates, Jericho, (Keith E. Ford of
counsel), for appellant.
Rubenstein & Rynecki, Brooklyn (Kliopatra Vrontos of
counsel), for respondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered July 14, 2008, which, insofar as appealed from as limited by the briefs, denied defendant-appellant's cross motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the cross motion granted. The Clerk is directed to enter judgment in favor of appellant dismissing the complaint.
Appellant established a prima facie entitlement to summary judgment by submitting the affirmed reports of an orthopedic surgeon and a neurologist, who reviewed plaintiff's medical records, examined her and performed detailed and objective tests before concluding that plaintiff had full range of motion in her cervical and lumbar spines and her shoulders, and that the sprain injuries she sustained had resolved (see Lunkins v Toure, 50 AD3d 399 [2008]). Appellant also submitted the affirmed reports of a radiologist, who determined that plaintiff's claimed injuries were not causally related to her accident, but rather were the result of a degenerative condition (see Becerril v Sol Cab Corp., 50 AD3d 261 [2008]). Furthermore, appellant submitted plaintiff's deposition testimony, where she stated, inter alia, that she missed no work as a result of the accident.
Plaintiff's opposition failed to present evidence rebutting the findings of appellant's doctors, specifically the opinion of the radiologist that the growth shown on the MRI was a degenerative condition that had developed over time (see Pommells v Perez, 4 NY3d 566, 580 [2005]). Nor does plaintiff raise a triable issue of fact regarding her 90/180-day claim. As noted, plaintiff went back to work immediately following the accident, and her subjective claims of pain and of her inability to perform household chores are insufficient to raise a triable issue (see Guadalupe v Blondie Limo, Inc., 43 AD3d 669, 670 [2007]).
Diaz v. Lexington Exclusive Corp.

Gannon, Rosenfarb & Moskowitz, New York (Jason B.
Rosenfarb of counsel), for appellant.
Thomas D. Hughes, New York (Richard C. Rubenstein of
counsel), for respondents.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered September 26, 2008, which, to the extent appealed from, denied third-party defendant Lexington Exclusive Corp.'s motion for summary judgment dismissing the cross claims and third-party claim for contractual indemnification, unanimously reversed, on the law, with costs, the motion granted and such claims dismissed. The Clerk is directed to enter judgment accordingly.
The lease between the Goldman third-party plaintiffs, as landlord, and Lexington, as tenant, requires the latter to procure liability insurance for the former's benefit. The Goldmans, who had obtained their own insurance as of the date of the subject accident, allege that Lexington breached the lease's indemnification clause insofar as it provides that the tenant "shall indemnify and save harmless Owner against and from all liabilities, obligations, damages, penalties, claims, costs and expenses for which Owner shall not be reimbursed by insurance." Lexington contends that the indemnification clause allows for the Goldmans' reimbursement under any insurance policy, including their own, in order for Lexington to be relieved of its contractual duty to indemnify. According to the Goldmans' construction of the clause, Lexington can be relieved of the duty to indemnify them only to the extent that it procures insurance for their benefit. In denying summary judgment, the IAS court found Lexington had failed to demonstrate that the lease unambiguously requires dismissal of the Goldmans' indemnification claim by reason of the fact that they have procured their own insurance. We find the court's conclusion erroneous.
Contrary to the IAS court's finding, "reimbursed by insurance," as used above, means just that, without regard to any specific source of coverage. "It is axiomatic that a contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language employed [emphasis added]" (Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16, 19 [1961]). Courts should not strain to find contractual ambiguities where they do not exist (Star City Sportswear v Yasuda Fire & Mar. Ins. Co. of Am., 1 AD3d 58, 60 [2003], affd 2 NY3d 789 [2004]). For example, in Arteaga v 231/249 W 39 St. Corp. (45 AD3d 320 [2007]), this Court found no ambiguity in a lease and dismissed a landlord's claim for indemnity under a provision that similarly obligated the tenant to indemnify the landlord solely for costs "for which Owner shall not be reimbursed by insurance" (see also Wilson v Haagen Dazs Co., 201 AD2d 361 [1994]). We recognize that out-of-pocket expenses incurred in obtaining insurance are recoverable as damages for breaches of agreements to procure insurance (see Inchaustegui v 666 5th Ave. Ltd. Partnership, 96 NY2d 111 [2001]). The Goldmans' brief, however, makes it clear that they are not seeking such damages.
Fieldston Property Owners Association, Inc. v. Hermitage Insurance Company, Inc
In action No. 1, defendant Hermitage Insurance Company, Inc. appeals from an order of Supreme Court, New York County (Herman Cahn, J.), entered August 10, 2006, which granted the motion of Federal Insurance Company for summary judgment dismissing the amended cross claims against it, and denied the cross motion of Hermitage Insurance Co. for summary judgment. In action no. 2, cross appeals from an order of the same court and Justice, entered January 25, 2007, which denied both Federal's motion and Hermitage's cross motion for summary judgment.

Gold, Stewart, Kravatz, Benes & Stone, LLP, Westbury (James F. Stewart and
Jeffrey B. Gold of counsel), for appellant/appellant-respondent.
Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel) for
respondent/respondent-appellant.

MCGUIRE, J.
This is a consolidated appeal in two declaratory judgment actions involving a dispute between two insurers, Hermitage Insurance Co., Inc. and Federal Insurance Co., over responsibility for the costs of defending their mutual insured, Fieldston Property Owners Association, Inc., and certain of its officers or directors (collectively, the Fieldston parties), in two actions that brought essentially the same set of claims alleging various wrongful acts and statements by officers or directors of Fieldston. The plaintiff in the first of the underlying actions is Chapel Farms Estate, Inc. Although nominally a distinct entity, the plaintiff in the second of the underlying actions is Chapel Hill.
Hermitage issued a "Commercial General Liability Policy" (the CGL policy) with an effective policy period of July 5, 2000 to July 5, 2001 and a per occurrence limit of liability of $1,000,000. The CGL policy is an "occurrence policy" that provides coverage for certain acts giving rise to liability occurring during the policy period. Pursuant to the policy, Hermitage provides coverage for "bodily injury," "property damage" and "personal and advertising injury" within the meaning of those terms as defined in the policy. Federal issued an "Association Directors and Officers Liability Policy" (the D & O policy), having an effective policy period of February 13, 1999 to February 13, 2002 and a "per loss" limit of liability of $1,000,000. The D & O policy is a claims-made policy that provides coverage to Fieldston and its officers and directors, also insureds under the policy, for an array of "Wrongful Acts," a term broadly defined in the policy, as well as for losses relating to specified "offenses," a term defined to include, among other things, defamation, wrongful entry and eviction, provided the act or offense is committed during or before the policy period. Except to the extent that the "other insurance" clause may so provide, the D & O policy does not purport to be an excess policy. Federal also issued a "Commercial Umbrella Policy" (the umbrella policy), the particulars of which need not be detailed for the reason set forth below.
Hermitage communicated its position to Federal that only one of the eight causes of action, for injurious falsehood, in the first action might trigger its defense obligation. Although Federal did not dispute that its D & O policy provided coverage, Federal took the position that the D & O policy was excess to the Hermitage policy and refused for this reason to provide coverage for or contribute to the defense of the action. Consistent both with the settled principle that the duty to defend is broader than the duty to indemnify and with the obligation of an insurer to provide a defense whenever there is "a reasonable possibility of coverage" (Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 67 [1991]), even when some of the claims asserted against its insured "fall outside the policy's general coverage or within its exclusionary provisions" (BP Air Conditioning Corp. v One Beacon Ins. Group, 8 NY3d 708, 714 [2007] [internal quotation marks omitted]), Hermitage undertook the defense of the action subject to a full reservation of rights. With respect to the second action, Hermitage took the position that only 1 of the 21 causes of action, for injurious falsehood, in the original complaint, and only 1 of the 17 causes of action in the first amended complaint, also for injurious falsehood, might trigger its defense obligation. Although Federal conceded that at least some of the causes of action fell within the coverage provided by the D & O policy, Federal again took the position that the D & O policy was excess to the Hermitage policy and refused to provide coverage for or contribute to the defense of the second action. Hermitage once again undertook the defense of the second action subject to a full reservation of rights.
The first action was dismissed as to all defendants prior to the commencement of the second action. After this Court upheld the dismissal of certain of the causes of action in the first amended complaint in the second action, including the claim for injurious falsehood (Villanova Estates, Inc. v Fieldston Prop. Owners Assn., Inc., 23 AD3d 160 [2005]), Hermitage demanded that Federal assume the defense of the action and Federal complied.
Hermitage appeals from an order entered in each of the declaratory judgment actions relating to the respective obligations of the insurers in connection with the underlying actions. The first declaratory judgment action was brought by Fieldston against both insurers, and Supreme Court, by an order entered on August 10, 2006, granted Federal's motion for summary judgment dismissing the cross claims against it brought by Hermitage and denied Hermitage's cross motion for summary judgment seeking, among other things, a declaration that Federal is required to reimburse it, in whole or in part, for the defense costs it incurred in the first underlying action. In relevant part, Supreme Court concluded that Hermitage "was the primary insurer and Federal the excess insurer" with respect to that action because of the "other insurance" clause in Federal's D & O policy. The second declaratory judgment action was brought by Hermitage against Federal, and Supreme Court, by an order entered January 25, 2007, denied both Federal's motion for summary judgment dismissing the action and Hermitage's cross motion for summary judgment seeking, among other things, a declaration that Federal is required to reimburse it in full for the defense costs it incurred in the second underlying action or, in the alternative, that Federal is required to contribute to those costs on an equitable basis. In relevant part, Supreme Court concluded that "neither party ha[d] demonstrated as a matter of law that the Federal policies are excess to the Hermitage policy" with respect to that action. In addition to the appeal by Hermitage, Federal cross appeals from the January 25, 2007 order. 
In its main brief, Federal maintains that "there is no real dispute that the causes of action asserted in both [underlying] actions fell within the coverages afforded to Fieldston under both the Hermitage CGL policy and the Federal D & O policy." Of course, however, Hermitage has maintained from the outset - and Federal does not contend otherwise - that at most only one cause of action in each of the underlying actions falls within its CGL policy. Moreover, as noted earlier, Federal does not dispute that at least some of the causes of action asserted in both underlying actions fall within the coverage afforded by its D & O policy. Indeed, although Federal made clear at all times that its position was that the D & O coverage is excess to Hermitage's CGL policy, by a letter dated December 10, 2001, Federal informed Fieldston with regard to the first underlying action that "[i]n the context of this matter, coverage will be afforded to Fieldston"; by a letter dated January 6, 2004, Federal informed Fieldston with regard to the second underlying action that "[i]n the light of the allegations of the ... Complaint, we will provide coverage for Fieldston ... for this matter." Accordingly, with the possible exception of the injurious falsehood claim asserted in both underlying actions, it is undisputed that the Hermitage CGL policy and the Federal D & O policy do not provide coverage for the same risks. Indeed, Federal expressly so conceded in one of its submissions to Supreme Court. Finally, it also is undisputed that certain of the causes of action are based on alleged wrongful acts by the Fieldston parties that occurred after the policy period of the Hermitage CGL policy but during the period in which the Federal D & O policy was in effect.
Although the coverage provided by its D & O policy otherwise is primary and at least some of the causes of action asserted in the underlying actions otherwise would trigger its defense obligation, Federal contends that it is relieved of any obligation to defend because of the "other insurance" clause in the D & O policy. This is so, Federal maintains, because the "other insurance" clause effectively renders it an excess insurer and Hermitage a primary insurer, which "has a duty to defend without any entitlement to contribution from an excess insurer"
(General Motors Acceptance Corp. v Nationwide Ins. Co., 4 NY3d 451, 456 [2005] [internal quotation marks omitted]). Accordingly, Federal's position entails the proposition that regardless of the number of claims asserted against one of its insureds that are covered under a policy providing primary coverage but containing such an "other insurance" clause, it is absolved of any obligation to defend its insured as long as the complaint in the underlying action includes even a single cause of action that falls within the coverage of another primary insurer's policy, regardless of whether it also falls within the Federal policy, and even though all the other causes of action fall outside the coverage of the other insurer's policy. Only if the single cause of action within the scope of the other insurer's policy is dismissed before the dismissal of all the other causes of action would Federal then be obligated to defend its insured.
Moreover, Federal thus would be absolved of its duty to defend regardless not only of the number of causes of action that fall within its policy but also of both the extent of the financial burden imposed on the other insurer in also defending these causes of action and of how unrelated the sole cause of action within the other insurer's policy is to all the other causes of action that are covered by Federal's policy. Federal defends this position in part on the basis of the obligation of the other insurer to provide a defense even when some of the causes of action asserted against its insured "fall outside the policy's general coverage or within its exclusionary provisions" (BP Air Conditioning, 8 NY3d at 714). Of course, the other insurer might well contend that because the law imposes the same obligation on Federal, at the very least Federal also must defend the insured and that requiring Federal to do so is particularly appropriate when the bulk of the claims against the insured fall within only the Federal policy. Federal, however, seeks to avoid the force of this contention by arguing that the "other insurance" clause of its policy requires the conclusion that the obligation to defend uncovered claims is not a reciprocal one that it shares.
The anomalies inherent in Federal's position might well be of no moment if they were compelled by the terms of the "other insurance" clause. They are not. The clause reads as follows:
"If any Loss arising from any claim made against the Insured(s) is insured under any other valid policies prior or current, then This policy shall cover such Loss ... only to the extent that the amount of such Loss is in excess of the amount of such other insurance whether such other insurance is stated to be primary, contributory, excess, contingent or otherwise, unless such other insurance is written only as specific excess insurance over the limits provided in th[is] policy."
Contrary to Federal's contention, it is irrelevant that Hermitage's CGL policy is not "written only as specific excess insurance over the limits provided in the [D & O] policy." As Hermitage correctly argues, by its plain terms the "other insurance" clause applies only where a loss is insured under both the D & O policy and another "valid policy."[FN1] With the possible exception of the injurious falsehood claims, all the other losses (including defense costs) that could result from the other causes of action are not insured under the CGL policy but at least some of them are insured under the D & O policy. Accordingly, the "other insurance" clause is inapplicable to the risks of all other such losses, and the D & O policy thus provides primary coverage with respect to some of those risks. In other words, putting aside that possible exception, the CGL and D & O policies do not provide concurrent coverage as they do not insure against the same risks (see Federal Ins. Co. v Empire Mut. Ins. Co., 181 AD2d 568, 569 [1992] ["The law is well settled that where different insurers provide coverage for the same interest and against the same risk, concurrent coverage exists"]; cf. Consolidated Edison Co. v Allstate Ins. Co., 98 NY2d 208, 223 [2002] ["other insurance" clauses "apply when two or more policies provide coverage during the same period"]).[FN2]
Although Hermitage should prevail on these appeals if only one of the causes of action in the complaints in the underlying actions other than the injurious falsehood claims is covered by the D & O policy and not by the CGL policy, as noted above Federal concedes that at least some of the other causes of action are covered by its D & O policy. Accordingly, Hermitage is entitled to contribution from Federal for Federal's equitable share of all the defense costs incurred by Hermitage, except for the costs Hermitage incurred in defending against the injurious falsehood claims if those claims are covered by both policies or are covered solely by the CGL policy (see General Motors Acceptance Corp., 4 NY3d at 457, [where, pursuant to the "other insurance" clause in one insurer's policy it was excess to the other insurer's policy only as to the duty to indemnify, both insurers were "coincidental primary insurers" as to the duty to defend and each was required to contribute to the defense costs]; cf. Atlantic Mut. Ins. Co. v Greater N.Y. Mut. Ins. Co, 241 AD2d 427, 427-428 [1997], lv dismissed 91 NY2d 956 [1998] [where two insurers "insured a common obligation by providing successive coverage to their insured," the insurer that assumed the costs of defending the action was "entitled to recover from [the other insurer] its pro rata share of the defense costs"]).
Our decision in Fireman's Fund Ins. Co. v Abax, Inc. (12 AD3d 277 [2004]) provides compelling support for Hermitage's position. At issue in Abax was whether and the extent to which two insurers, Fireman's Fund and Zurich America, were responsible for defense costs and indemnity payments incurred in an underlying personal injury action against their mutual insured. We concluded that the "other insurance" clause in Fireman's policy did not apply to the claim against the insured so as to render Fireman's an excess insurer without any responsibility for the costs and payments. Although the terms of the "other insurance" clause are not set forth in our opinion, the record on appeal discloses that the terms of the clause are indistinguishable from the "other insurance" clause in Federal's D & O policy. Specifically, the clause provided that "[i]f there is other insurance covering the same loss or damage under this policy ..., we will only pay for the amount of covered loss or damage in excess of the amount due from that other insurance" (emphasis added). The clause did not apply as it was included in the property section of the policy and the personal injury claim triggered coverage under other provisions of the policy. Accordingly, we held that the insurers "both provided primary coverage" and that as "coinsurers of the [insured] in the underlying personal injury action, [each] should share equally in the defense costs and indemnity payments" (id. at 278).
Persuasive additional support for Hermitage's position is provided by NL Indus., Inc. v Commercial Union Ins. Co. (935 F Supp 513 [D NJ 1996]). During a particular period of years, Commercial Union (CU) provided bodily injury coverage to the insured and Lloyd's provided property damage coverage (id. at 518). In the underlying "lead paint" actions, the insured defended against claims seeking to recover for both bodily injury and property damage. Construing New York law, the court rejected Lloyd's argument that because of an "other insurance" clause in its policies, its coverage was excess to CU's and thus it was not obligated to pay any portion of the defense costs for claims relating to the period in which both insurers' policies were in effect. Like the "other insurance" clause in the D & O policy, the " excess' or other' insurance clause in Lloyd's policies provide that coverage is secondary to coverage afforded by any other good, valid and collectible insurance inuring to the benefit of the Assured'" (id.). As the court observed, however, "Lloyd's excess' clause only applies with respect to loss or claims covered hereby.' Because [Lloyd's] policies cover only property damage, and CU's covers bodily injury exclusively, Lloyd's excess' clause is not triggered" (id.). In going on to conclude that CU could seek contribution from Lloyd's, the court reasoned as follows:
"Th[e] difference between the duty to defend and the duty to indemnify requires that contribution for defense costs may be had even where the insurers in question do not provide coverage for the same risks. Indeed, it would be illogical, and inequitable, to deny CU its right to obtain contribution from Lloyd's where their respective duties to defend have been independently activated by different claims in the same underlying suits" (id.).
Although the lack of support for Federal's position in the terms of the "other insurance" clause is a sufficient basis for rejecting its position, other of its flaws should be noted. Acceptance of Federal's position would create an incentive for coinsurers like Hermitage in similar disputes to act inconsistently with their broad duty to defend the insured. After all, if Hermitage had refused to provide a defense rather than respect its obligation to provide a defense even though certain of the claims asserted against Fieldston fell outside the scope of its CGL policy, it is at least conceivable that Fieldston may have brought a declaratory judgment against Federal alone, especially given that so many of the claims against it fall squarely within the scope of its D & O policy. In that event, Federal would have to seek contribution from Hermitage, rather than the other way around, and Hermitage would not in the meantime have incurred the costs of defending the underlying action. Moreover, to permit Federal to be a free rider here is particularly inappropriate given that it issued the D & O policy before the CGL policy was issued. Because Federal had no assurance that Fieldston would secure additional insurance that might overlap in coverage with the D & O policy, the premium Federal charged and accepted presumably reflected in part the potential costs of the broad duty to defend it had assumed under the policy. 
Ironically, Federal seeks to use the broad duty to defend as a sword, wielding it not only against Hermitage but also using it to cut that same duty out of its policy, arguing that by defending the underlying actions Hermitage conceded that its CGL policy provided coverage. In undertaking to defend the actions, Hermitage conceded at most only a reasonable possibility of coverage for at least one cause of action in each of the underlying complaints. Actually, Hermitage conceded nothing, for it provided a defense in each underlying action under full reservations of its rights (see National Rests. Mgt. v Executive Risk Indem., 304 AD2d 387 [2003]).
In support of its position, Federal understandably relies on our decision in Firemen's Ins. Co. of Washington, D.C. v Federal Ins. Co. (233 AD2d 193 [1996]). Both Firemen's and Federal issued policies to the defendant in an underlying action and certain allegations of the complaint were covered by Firemen's policy and others by a D & O policy issued by Federal. On the basis of an "other insurance" clause in the Federal policy, this Court held that Federal's policy was excess to Firemen's policy and thus that Firemen's was not entitled to contribution from Federal for the costs of defending the insured (id.). Although the terms of the "other insurance" clause are not set forth in the decision, Federal cites to the record on appeal and correctly points out that its terms are identical to those of the "other insurance" clause in this case.
Hermitage argues that Firemen's is distinguishable principally because, unlike this case, it did not "involve[] a situation where many of the underlying acts and claims giving rise to the underlying suit occurred during times when one insurer's policy was in effect, and the other insurer's policy was not." The broad duty to defend, however, requires an insurer to defend claims that are not within the scope of the policy it issues when another claim or claims may be. In terms of that duty, Hermitage provides neither any precedent nor any reason that would support distinguishing between claims falling outside the scope of a policy's coverage but arise from acts or claims that occur during the policy's effective period, and claims falling outside the scope of a policy's coverage because they arise from acts or claims that occur before or after the policy's effective period. It is far from obvious why an insurer need not defend against the latter class of claims when it must defend against the former. In any event, we refuse to follow our decision in Firemen's as it is not supported by the plain language of the "other insurance" clause in that case, and follow instead our more recent decision in Abax (12 AD3d 277) as it is in accordance with the plain language of the "other insurance" clause in this case, is consistent with Consolidated Edison Co. (98 NY2d 208), which was decided after Firemen's, and resolves these disputes between insurers in a more sensible fashion.
Hermitage's argument on this appeal that it demonstrated as a matter of law that Fieldston was not entitled to coverage for the injurious falsehood claims is without merit. In its brief, Hermitage relies on allegations in Chapel Hill's complaints in each action that the false statements at issue were intentionally made, made with knowledge of their falsity and that the resulting damages were intended. As these allegations, if true, apparently would trigger exclusions in its CGL policy, Hermitage maintains that "given the[se] plain allegations of the [injurious falsehood causes of action], the Hermitage policy does not provide coverage for same." An insurer, however, cannot avoid its obligation to provide a defense by assuming the truth of allegations against its insured when it has actual knowledge of facts establishing a reasonable possibility of coverage (Fitzpatrick, 78 NY2d at 66-67, 69).
Finally, as noted above, Federal also issued an umbrella policy to Fieldston. Although Hermitage argued before Supreme Court and in its main brief that the terms of the umbrella policy provide an independent ground for the conclusion that it is entitled to contribution from Federal, it states in its reply brief that it withdraws its arguments concerning the umbrella policy if this Court agrees it is entitled to contribution under the D & O policy. Because we hold that it is entitled to contribution under the D & O policy, we need not address or resolve those arguments.
For the reasons stated above, we reverse that portion of the order in the first declaratory judgment action granting Federal's motion for summary judgment dismissing Hermitage's cross claims and affirm that portion of the order in the second declaratory judgment action denying Federal's motion for summary judgment dismissing the action; and reverse those portions of the orders that denied Hermitage's cross motions for summary judgment and grant each motion to the extent of directing further proceedings to determine Federal's equitable share of the defense costs incurred by Hermitage (see Atlantic Mut., 241 AD2d at 427).
Accordingly, the order of Supreme Court, New York County (Herman Cahn, J.), entered August 10, 2006, which, in action no. 1, granted the motion of Federal Insurance Company, s/h/a Chubb Group of Insurance Companies (Federal), for summary judgment dismissing the amended cross claims against it, and denied the cross motion of Hermitage Insurance Co. for summary judgment, should be reversed, on the law, with costs, the motion denied, the cross motion granted, and it is declared that Federal is obligated to reimburse Hermitage for Federal's equitable share of the reasonable costs incurred by Hermitage in defending the Chapel Farms Estate, Inc. action (except for the costs Hermitage incurred in defending against the injurious falsehood claims if those claims are covered by both policies or are covered solely by the CGL policy); and the order of the same court and Justice, entered January 25, 2007, which, in action no. 2, denied both Federal's motion and Hermitage's cross motion for summary judgment, should be modified, on the law, Hermitage's cross motion granted, and it is declared that Federal is obligated to reimburse Hermitage for Federal's equitable share of the reasonable costs incurred by Hermitage in defending the Chapel Hill action (except for the costs Hermitage incurred in defending against the injurious falsehood claims if those claims are covered by both policies or are covered solely by the CGL policy), and otherwise affirmed, with costs.
All concur.
Opinion by McGuire, J. All concur.
Footnotes
Footnote 1: To the extent Federal argues that the risks of loss relating to the causes of action that fall outside the scope of the CGL policy are "insured under" that policy because Hermitage is required to defend against them, that argument is meritless. The broad obligation to defend claims outside the scope of an insurer's coverage is an incident of the insurer's contractual obligation to provide a defense for other claims that are or may be within the policy (see Fitzpatrick, 78 NY2d at 68) and is a duty owed to the insured that is imposed for the benefit of the insured (cf. General Motors Acceptance Corp., 4 NY3d at 456), not a coinsurer. Risks that an insurer must defend against on account of this broad duty are not thereby converted into risks that are covered by its policy.

Footnote 2: As Consolidated Edison Co. makes clear, because the two policies do not provide coverage during the same period, they do not provide concurrent coverage for that additional reason. As noted above, moreover, Federal conceded that the two policies "are different policies designed to cover different risks."

 

Roche v. Claverack Cooperative Insurance Company

Calendar Date: January 14, 2009
Before: Mercure, J.P., Rose, Lahtinen, Kane and Malone Jr., JJ.

David Seth Michaels, Spencertown, for appellant.
Knych & Whritenour, L.L.C., Syracuse (Matthew E.
Whritenour of counsel), for respondents.
MEMORANDUM AND ORDER

Kane, J.
Appeal from an order of the Supreme Court (Donohue, J.), entered September 10, 2008 in Columbia County, which, among other things, granted defendants' motion for summary judgment dismissing the complaint.
For approximately 25 years, defendant Claverack Cooperative Insurance Company retained plaintiff as an attorney to represent its insureds. In one such wrongful death matter, a jury rendered a verdict finding Claverack's insureds 75% liable on a $4,206,780 judgment. Claverack retained counsel, who wrote to Zurich Insurance Company plaintiff's professional liability insurance carrier regarding a potential claim due to plaintiff's alleged failure to keep Claverack apprised of the progression of the wrongful death matter and failure to settle the matter within Claverack's policy limits. The letter sought Zurich's contribution to a post-judgment settlement in the wrongful death matter. Counsel attached to the letter six memoranda that defendants allege were contemporaneous memorializations of telephone conversations between plaintiff and defendants Maureen Hess and Katherine Buckley, who are officers and directors of Claverack. Plaintiff contends that the memoranda were fabricated to compel Zurich to contribute to the settlement, which Zurich offered to do.
After Zurich declined to renew plaintiff's policy, plaintiff commenced this action seeking damages for defamation, defamation per se, injurious falsehood, prima facie tort, intentional infliction of emotional distress, fraud and conspiracy [FN1]. Defendants moved for summary judgment dismissing the complaint. Plaintiff cross-moved to disqualify defendants' counsel and opposed defendants' motion on the merits and as premature because no answer had been served. Defendants cross-moved seeking an order nunc pro tunc curing their failure to serve an answer. Supreme Court determined that no nunc pro tunc order was necessary, granted defendants' motion dismissing the complaint and denied plaintiff's cross motion as moot. On plaintiff's appeal, we modify and reinstate certain causes of action.
Initially, Supreme Court did not err in considering the motion for summary judgment despite defendants' failure to first serve an answer. While a motion for summary judgment is not authorized by statute until issue has been joined (see CPLR 3212 [a]; Berle v Buckley, 57 AD3d 1276, 1277 [2008]), the court could consider the motion because "the parties charted their own procedural course and treated defendants' summary judgment motion as if issue had indeed been joined" (Ryan v Bettiol, 211 AD2d 844, 845 [1995]; see Kline v Town of Guilderland, 289 AD2d 741, 741 n [2001]; cf. Yule v New York Chiropractic Coll., 43 AD3d 540, 541-542 [2007]).
Supreme Court erred in granting defendants summary judgment dismissing the defamation causes of action. To constitute defamation, plaintiff must prove that defendants made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se (see Dillon v City of New York, 261 AD2d 34, 38 [1999]). Plaintiff contends that defendants intentionally fabricated the memoranda to contain numerous false statements. The memoranda purportedly describe conversations concerning the trial in the wrongful death matter, implying that plaintiff did not convey settlement offers or attempt to settle within the policy limits. These statements were published to Zurich suggesting that plaintiff committed malpractice, thus implicating his business reputation. If the memoranda were fabricated, they were not conveyed with good faith as required for the common interest privilege to apply (cf. Lerwick v Krna, 29 AD3d 1206, 1208 [2006], lv denied 7 NY3d 712 [2006]; Demas v Levitsky, 291 AD2d 653, 661 [2002], lv dismissed 98 NY2d 728 [2002]). Plaintiff sufficiently asserted special damages, including that he was required to pay a deductible under his malpractice insurance policy and pay a higher premium to a new company when Zurich declined to renew his policy due to this claim (compare Stanton v Carrara, 28 AD3d 642, 642 [2006]). Any dispute concerning the causal relationship between the claim and these damages is a factual question. Because questions of fact exist concerning the elements of defamation, the court improperly dismissed plaintiff's two defamation causes of action.
Questions of fact preclude a grant of summary judgment dismissing the injurious falsehood cause of action. On that cause of action, plaintiff alleges that defendants conveyed false statements with an intent to harm plaintiff, and plaintiff was harmed due to those statements (see Gilliam v Richard M. Greenspan, P.C., 17 AD3d 634, 635 [2005]; Hirschhorn v Town of Harrison, 210 AD2d 587, 588 [1994]). As previously noted, plaintiff sufficiently asserted special damages. Plaintiff contends that Hess and Buckley included false statements in the memoranda concerning phone conversations in which plaintiff was a participant, with the intent to force plaintiff or his insurance company to contribute to the settlement. Hess and Buckley averred that the memoranda accurately memorialized those conversations. This conflict creates a credibility question which cannot be resolved on affidavits, making summary judgment inappropriate.
Prima facie tort is established where a defendant intentionally inflicts harm, without excuse or justification, through acts that would otherwise be lawful, and special damages are suffered (see Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]). To establish this cause of action, plaintiff contends that defendants fabricated the memoranda to obtain money from plaintiff and Zurich. If the memoranda are legitimate, defendants are protected by the defense of truth. If they are false, plaintiff cannot establish the elements of prima facie tort because providing false statements to obtain money is not otherwise lawful. Thus, regardless of any factual question concerning the legitimacy of the memoranda, the prima facie tort cause of action was properly dismissed.
Fraud is established where a defendant knowingly misrepresents a material fact, someone justifiably relies upon that misrepresentation and the plaintiff is thereby injured (see Scaturro v Sutera, 57 AD3d 1283, 1283 [2008]; Cohen v Colistra, 233 AD2d 542, 543-544 [1996]). Similar to his other causes of action, plaintiff contends that defendants purposely falsified the memoranda to induce plaintiff and Zurich to contribute to the settlement in the wrongful death matter. There is a question of fact as to whether, if the memoranda did constitute misrepresentation of material facts, Zurich justifiably relied on the memoranda or conducted its own investigation which led it to contribute to the settlement. Due to this factual question, summary judgment was inappropriate on the fraud cause of action.
Due to plaintiff's failure to present medical evidence of severe emotional distress, defendants were entitled to dismissal of plaintiff's speculative cause of action for intentional infliction of emotional distress (see Walentas v Johnes, 257 AD2d 352, 353 [1999], lv dismissed 93 NY2d 958 [1999]; Christenson v Gutman, 249 AD2d 805, 809 [1998]; Augat v State of New York, 244 AD2d 835, 837 [1997], lv denied 91 NY2d 814 [1998]). As New York does not recognize an independent cause of action for civil conspiracy to commit a tort, that claim was properly dismissed (see Salvatore v Kumar, 45 AD3d 560, 563-564 [2007], lv denied 10 NY3d 703 [2008]; Jebran v LaSalle Bus. Credit, LLC, 33 AD3d 424, 425 [2006]).
Hess and Buckley argue that they cannot be individually liable under any cause of action, as they drafted the memoranda as agents of Claverack. If they fabricated the memoranda, as plaintiff claims, they were presumably acting outside their employment. As officers and directors of Claverack, they possibly stood to personally benefit from a settlement of the wrongful death claim. Thus, we do not grant summary judgment to the individual defendants in their personal capacities.
We must now address plaintiff's cross motion to disqualify defendants' counsel, as that issue is no longer moot. An attorney shall withdraw from representation if the attorney "ought to be called as a witness," i.e., if the attorney's testimony is necessary (Code of Professional Responsibility DR 5-102 [A] [22 NYCRR 1200.21 (a)]; see S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 444 [1987]; Burdett Radiology Consultants v Samaritan Hosp., 158 AD2d 132, 134 [1990]). In his affidavit, defendants' counsel made his testimony relevant, and possibly necessary, by stating that the memoranda were in Claverack's file when he first reviewed it, months prior to the time when plaintiff alleges that the memoranda were fabricated. Thus, as counsel's testimony may be necessary to address the legitimacy of the memoranda, plaintiff's cross motion should be granted.
Mercure, J.P., Rose, Lahtinen and Malone Jr., JJ., concur.
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants' motion for summary judgment on the first, second, third and sixth causes of action and as denied plaintiff's cross motion to disqualify defendants' counsel; defendants' motion denied to said extent, plaintiff's cross motion granted and defendants' counsel disqualified; and, as so modified, affirmed.
Footnotes

Footnote 1:While the complaint seems to address statements in counsel's letter to Zurich as well as the memoranda written by Hess and Buckley, on appeal plaintiff limits his argument to the memoranda.
161 Hudson, LLC v. Sirius America Insurance Company

White, Quinlan & Staley, LLP, Garden City, N.Y. (Christopher
M. Otton of counsel), for appellant.
Shapiro, Beilly, Rosenberg & Aronowitz, LLP, New York,
N.Y. (Roy J. Karlin of counsel), for
respondent.

DECISION & ORDER
In an action, inter alia, for a judgment declaring that the defendant Sirius America Insurance Company is obligated to defend and indemnify the plaintiff in an underlying action entitled Zhong K. Wang v 161 Hudson LLC, pending in the Supreme Court, Kings County, under Index Number 13240/03, the defendant Sirius America Insurance Company appeals from a judgment of the Supreme Court, Kings County (Held, J.), entered April 1, 2008, which, among other things, declared that it is obligated to defend and indemnify the plaintiff in the underlying action.
ORDERED that the judgment is affirmed, with costs.
The Supreme Court properly found that the defendant Sirius America Insurance Company (hereinafter Sirius) is obligated to defend and indemnify the plaintiff in the underlying action, as the plaintiff demonstrated that the delay by Sirius in issuing a disclaimer of coverage for the underlying lawsuit was unreasonable as a matter of law (see Insurance Law § 3240[d]; Tex Dev. Co., LLC v Greenwich Ins. Co., 51 AD3d 775; Sirius Am. Ins. Co. v Vigo Constr. Corp., 48 AD3d 450; Liberty Mut. Fire Ins. Co. v National Cas. Co., 47 AD3d 770; Matter of Allstate Ins. Co. v Swinton, 27 AD3d 462). Accordingly, Sirius is precluded from disclaiming coverage based on a late notice of claim or policy exclusion (see Insurance Law § 3420[d]; Pile Found. Constr. Co. v Investors Ins. Co. of Am., 2 AD3d 611).
The remaining contentions raised by Sirius either are without merit or need not be reached in light of our determination.
Kohl v. American Transit Insurance Company

David Katz & Associates, LLP, New York, N.Y. (Salvatore J.
Sciangula of counsel), for appellant.
Marjorie E. Bornes, New York, N.Y., for respondent.

DECISION & ORDER
In an action for a judgment declaring that the defendant is required to defend and indemnify the plaintiff in a personal injury action entitled Marmolejo v Devox, Inc., pending in the Supreme Court, New York County, under Index No. 100033/08, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated July 30, 2008, as granted the defendant's cross motion for summary judgment.
ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant, American Transit Insurance Company, is not obligated to defend and indemnify the plaintiff in the personal injury action entitled Marmolejo v Devox, Inc., pending in the Supreme Court, New York County, under Index No. 100033/08.
On November 13, 2007, the plaintiff was a passenger in a taxicab insured by the defendant. David Marmolejo allegedly was injured while riding a bicycle when the plaintiff, upon exiting the taxicab, opened a rear door into Marmolejo's path, causing a collision with the open door. In January 2008 Marmolejo commenced a personal injury action in the Supreme Court, New York County, against the plaintiff and the taxicab's owner and driver. In March 2008 the plaintiff commenced this action for a judgment declaring that the defendant was required to defend and indemnify him in the personal injury action. The Supreme Court granted the defendant's cross motion for summary judgment.
The Supreme Court properly granted the defendant's cross motion for summary judgment since the plaintiff is not entitled to a defense or to indemnity for his "use" of a vehicle under the defendant's commercial automobile policy insuring the owner and the driver of the taxi-cab (see Vehicle and Traffic Law § 370[1]; Cohn v Nationwide Mut. Ins. Co., 286 AD2d 699, 700; Swee v Vals Trans, 225 AD2d 113, 115-116).
The plaintiff's remaining contentions are either without merit or improperly raised for the first time on appeal.
We note that since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in the personal injury action entitled Marmolejo v Devox, Inc., pending in the Supreme Court, New York County, under Index No. 100033/08.
Desir v. Castillo

Harmon, Linder, & Rogowsky, New York, N.Y. (Mitchell
Dranow of counsel), for appellants.
White & McSpedon, P.C., New York, N.Y. (Baker,
McEvoy, Morrissey & Moskovits, P.C.
[Holly E. Peck], of counsel), for
respondent.

DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated October 25, 2007, as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Yolette Lange on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the appeal by the plaintiff Sansion Desir is dismissed, as that plaintiff is not aggrieved by the portion of the order appealed from; and it is further,
ORDERED that the order is reversed insofar as appealed from by the plaintiff Yolette Lange, on the law, and that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Yolette Lange is denied; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff Yolette Lange.
Although the defendant established his prima facie entitlement to summary judgment as against the plaintiff Yolette Lange (see Luckey v Bauch, 17 AD3d 411; Sims v Megaris, 15 AD3d 468; Check v Gacevk, 14 AD3d 586), the plaintiffs submitted sufficient evidence in opposition to raise a triable issue of fact as to whether Lange sustained a serious injury. The plaintiffs' objective medical evidence included affirmations from the physician who had treated Lange in the months following the accident, as well as from the physicians who had examined her in response to the summary judgment motion, in which the physicians, inter alia, quantified their findings of reduced ranges of motion in her cervical spine, lumbar spine, and left knee (see Djetoumani v Transit, Inc., 50 AD3d 944; Fisher v Williams, 289 AD2d 288).
Lopez v. Beltre

Brand Brand Nomberg & Rosenbaum, LLP, New York, N.Y.
(Brett J. Nomberg of counsel), for appellants.
O'Connor, McGuiness, Conte, Doyle & Oleson, Uniondale,
N.Y. (Congdon, Flaherty, O'Callaghan,
Reid, Donlon, Travis & Fishlinger
[Christine Gasser], of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered June 3, 2008, as granted the motion of the defendant Village of Port Chester for summary judgment dismissing the complaint insofar as asserted against it and, in effect, denied, as academic, those branches of their cross motion which were to dismiss the affirmative defenses in the answer of the defendant Village of Port Chester that the infant plaintiff was comparatively negligent and that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is modified, on the law, by deleting the provisions thereof granting the motion of the defendant Village of Port Chester for summary judgment dismissing the complaint insofar as asserted against it and, in effect, denying, as academic, that branch of the plaintiffs' cross motion which was for summary judgment dismissing the affirmative defense in the answer of the defendant Village of Port Chester that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and substituting therefor provisions denying the motion of the defendant Village of Port Chester for summary judgment and granting that branch of the plaintiffs' cross motion which was to dismiss the affirmative defense of the defendant Village of Port Chester that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d); as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.
The infant plaintiff was crossing the street after school when he was struck by a vehicle owned and operated by the defendant Ramon Beltre. Beltre was attempting to make a left turn onto the southbound lane of Don Bosco Place from the westbound lane of Purdy Avenue and the plaintiff was attempting to cross Don Bosco Place when the collision occurred. The intersection was governed by traffic light signals, and the defendant Village of Port Chester (hereinafter the Village) stationed a crossing guard on Don Bosco Place at its intersection with Purdy Avenue. As a result of the accident, the infant plaintiff and his mother, suing derivatively, commenced this action. The Village moved for summary judgment dismissing the complaint insofar as asserted against it, contending that its crossing guard was not negligent and that Beltre's negligence was the sole proximate cause of the accident. The plaintiffs cross-moved, inter alia, to dismiss the affirmative defenses that the infant plaintiff was comparatively negligent and that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The Supreme Court granted the Village's motion and, in effect, denied the plaintiffs' cross motion as academic. We modify.
On a motion for summary judgment, the court's function is to determine whether material factual issues exist, not to resolve such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Baker v D.J. Stapleton, Inc., 43 AD3d 839). A motion for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Scott v Long Is. Power Auth., 294 AD2d 348; see Dolitsky v Bay Isle Oil Co., 111 AD2d 366).
The Supreme Court erred in granting the motion of the Village for summary judgment dismissing the complaint insofar as asserted against it. Under the circumstances of this case, the Village assumed a special relationship with the infant plaintiff (see Cuffy v City of New York, 69 NY2d 255, 260; Vandewinckel v Northport/East Northport Union Free School Dist., 24 AD3d 432, 433). While the Village established its prima facie entitlement to summary judgment on the ground that any duty owed to the infant plaintiff was not breached (see Zuckerman v City of New York, 49 NY2d 557, 562), the plaintiffs, in opposition, raised triable issues of fact regarding the respective locations at the time of the accident of the infant plaintiff, the approaching car, and the Village's crossing guard, in addition to what the crossing guard did or did not see and do (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-68; Branch v Stehr, 93 AD2d 849, 850).
The Supreme Court, in effect, denied, as academic, that branch of the plaintiffs' cross motion which was to dismiss the Village's affirmative defense of comparative negligence. On the merits, the denial was proper, as the record discloses conflicting evidence as to whether, at the time of the collision, the infant plaintiff was within the crosswalk, with the right-of-way, or 20 feet south of it (see Vehicle and Traffic Law § 1152[a]; Hopkins v Haber, 39 AD2d 471).
The Supreme Court should have granted that branch of the plaintiffs' cross motion which was to dismiss the Village's affirmative defense that the infant plaintiff did not sustain a serious injury. The plaintiffs established prima facie that the infant sustained, inter alia, a fracture, and in opposition, the Village failed to raise a triable issue of fact (see Tagger v Olympic Van Line, Inc., 38 AD3d 646).
The parties' remaining contentions have been rendered academic in light of our determination.
Perez v. Santiago

Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of
counsel), for appellants.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Salvatore Battaglia and Michele Battaglia appeal from so much of an order of the Supreme Court, Kings County (Martin, J.), dated December 3, 2007, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them by the plaintiff Sandra Barreto on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Salvatore Battaglia and Michele Battaglia which was for summary judgment dismissing the complaint insofar as asserted against them by the plaintiff Sandra Barreto is granted.
The appellants established, prima facie, that the respondent did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident through the submissions of the respondent's deposition testimony and the affirmed medical reports of their examining neurologist, orthopedist, and radiologist (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In opposition, the respondent failed to raise a triable issue of fact. The unaffirmed report of the respondent's treating physician did not constitute competent medical evidence, and, in any event, was based upon examinations of the respondent made some three years prior to the motion for summary judgment (see Batista v Olivo, 17 AD3d 494; Frier v Teague, 288 AD2d 177; Hand v Bonura, 283 AD2d 608; Mohamed v Dhanasar, 273 AD2d 451). In addition, neither the respondent nor the physician who examined her for purposes of opposing the summary judgment motion adequately discussed the three-year period of time between the cessation of her medical treatments and the more recent examination. Moreover, there was no competent medical evidence to substantiate the examining physician's claim of a bulging lumbar disc. Indeed, the respondent's own submissions indicated that the MRI taken shortly after the accident did not reveal any disc bulges or herniations, or any other injuries. Furthermore, the respondent failed to proffer competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Sainte-Aime v Ho, 274 AD2d 569; DiNunzio v County of Suffolk, 256 AD2d 498).
Sobin v. Tylutki

Michael A. Cervini, P.C. (Lisa M. Comeau, Garden City, N.Y., and
Mary Ellen O'Brien of counsel), for appellant.
Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of
counsel), for respondents Rafal Tylutki and
Dariusz Lipinski.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (Dollard, J.), dated June 26, 2007, which granted the motion of the defendant Allen Luna for summary judgment dismissing the complaint insofar as asserted against him on the ground that he was not at fault in the happening of the accident, and (2), as limited by her brief, from so much of an order of the same court dated November 16, 2007, as denied that branch of her motion which was for leave to renew her opposition to a prior motion of the defendants Rafal Tylutki and Dariusz Lipinski for summary judgment dismissing the complaint insofar as asserted against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), which had been determined in a second order dated June 26, 2007.
ORDERED that the first order dated June 26, 2007, is affirmed; and it is further,
ORDERED that the order dated November 16, 2007, is affirmed insofar as appealed from; and is further,
ORDERED that one bill of costs is awarded to the respondents Rafal Tylutki and Dariusz Lipinski.
This action arises from a chain-reaction motor vehicle accident which occurred on March 21, 2005, on Eliot Avenue, near its intersection with 74th Street in Queens. A motor vehicle operated by the defendant Rafal Tylutki and owned by the defendant Dariusz Lipinski struck the rear of a vehicle operated by the defendant Allen Luna, propelling it into a vehicle operated by the defendant Frederick Vennera, which, in turn, was propelled into a motor vehicle operated by the plaintiff. According to Luna's undisputed testimony, he had been stopped at a red light at the intersection of Eliot Avenue and 74th Street for approximately 45 seconds when the impact to his car occurred.
The evidence which Luna submitted in support of his motion for summary judgment dismissing the complaint insofar as asserted against him established, prima facie, that he was not liable for the impact to the plaintiff's motor vehicle (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Arias v Rosario, 52 AD3d 551). In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212[b]). Accordingly, the Supreme Court properly granted Luna's motion for summary judgment.
With respect to that branch of the plaintiff's motion which was for leave to renew, "[i]n general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, and must set forth a reasonable justification for the failure to present such facts on the prior motion" (Worrell v Parkway Estates, LLC, 43 AD3d 436, 437). A motion "to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (see Renna v Gullo, 19 AD3d 472, 473, quoting Rubinstein v Goldman, 225 AD2d 328, 329). The Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion (see Worrell v Parkway Estates, LLC, 43 AD3d at 437). Here, in support of that branch of her motion which was for leave to renew, the plaintiff submitted additional facts known to her at the time of the prior motion without demonstrating a reasonable justification for failing to submit them on the earlier motion (see Renna v Gullo, 19 AD3d at 472). Thus, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew.
Torres v. Garcia

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Thomas Torto of counsel), for appellants.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated June 17, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, without costs or disbursements.
The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In support of their motion, the defendants relied, inter alia, on the affirmed medical report of their examining orthopedic surgeon. In that report, the orthopedic surgeon noted the existence of significant range-of-motion limitations in the plaintiff's cervical spine (see Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555, 556; Zamaniyan v Vrabeck, 41 AD3d 472, 473). The defendants' orthopedic surgeon failed to explain or substantiate, with objective medical evidence, the basis for his conclusion that the restrictions in cervical motion were self-imposed.
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider the sufficiency of the evidence submitted in opposition to the motion (see Hurtte v Budget Roadside Care, 54 AD3d 362).
Tower Insurance Company of New York v. Jaison John Realty Corp.

Law Office of Max W. Gershweir, New York (Jennifer
Kotlyarsky of counsel), for appellant-respondent.
Quadrino Schwartz, Garden City (Brad A. Schlossberg of
counsel), for appellants.
Order and judgment (one paper), Supreme Court, New York County (Jane S. Solomon, J.), entered June 23, 2008, which, in a declaratory judgment involving whether plaintiff insurer (Tower) is obligated to defend and indemnify defendants apartment building owner and property manager (collectively John) in an underlying action brought by defendant tenant (Dias) for personal injuries sustained when she fell down a stairway in the building, upon motions for summary judgment, declared that Tower is not obligated to defend and indemnify John and that Dias gave Tower timely and otherwise valid notice of the accident in accordance with Insurance Law § 3420(a)(3), unanimously modified, on the law, Tower's motion as to Dias granted, Dias's cross motion denied, and it is declared that Dias is not entitled to proceed directly against Tower, and otherwise affirmed, without costs.
It appears that later in the day of the accident, September 17, 2006, John was on the premises and saw that the stairway handrail had been removed. Then, while still on the premises, John received a phone call from the police informing him that a person named Dias had fallen down the stairs and that the handrail had been removed. John did not undertake to obtain a copy of the police report, which would have informed him that a tenant named Dias was taken from the building by ambulance after falling down the stairs due to a loose handrail, and that the police had removed a portion of the handrail. John asserts that he saw Dias the day after the accident and spoke to her and that she appeared fine and did not mention the accident, and that she called him several days after the accident to complain about noise and hot water and again did not mention the accident, but he never asked her what, if anything, had happened or whether she was injured. John first gave Tower written notice of the accident on or about February 5, 2007, almost five months after the accident, when he forwarded the summons and complaint in the underlying action. These circumstances, particularly the missing handrail, establish that John's belief that Dias had not been injured and would not make a claim was unreasonable, and thus did not excuse the otherwise unreasonable five-month delay in giving notice of the accident (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005] [whether and to what extent insured has inquired into circumstances of accident may be relevant on issue of reasonableness]; Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235, 239-240 [2002]; SSBSS Realty Corp. v Public Serv. Mut. Ins. Co., 253 AD2d 583 [1998]).
Concerning the declaration in favor of Dias and against Tower, the December 20, 2006 letter from Dias's counsel to John advised John to notify his insurer of the accident, and that if counsel did not hear from John's insurer or legal representative within 20 days, Dias would commence an action. A month later, on or about January 23, 2007, having received no response and still unaware of the identity of John's insurer, Dias commenced suit against John, and, less than two weeks later, Tower received notice of the accident when John forwarded a copy of the summons and complaint. This is insufficient under Insurance Law § 3420(a)(3). Dias never attempted to ascertain the identity of John's insurer and merely relied on correspondence to John (Tower Ins. Co. of N.Y. v Lin Hsin Long Co., 50 AD3d 305 [2008]). We have considered the parties' remaining contentions for affirmative relief and find them unavailing.
Wells Fargo Bank, N.A. v Zurich American Insurance Company

Proskauer Rose LLP, New York (Edwin M. Baum of counsel),
for appellant.
Donovan Hatem LLP, New York (Mitchell Rose of counsel), for
respondents.
Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered September 10, 2007, after a nonjury trial, inter alia, dismissing the complaint, unanimously affirmed, without costs.
We agree with the trial court that Wells Fargo failed to carry its burden of establishing entitlement to the payment it seeks under the "Creditor Reimbursement for Environmental Damages Insurance" policy issued by Lumbermens Mutual Casualty Company. Notwithstanding Wells Fargo's insistence that, under policies such as this, payment is due by virtue of the borrower's default, this particular policy covers — in the event of a default — loss to the collateral value of the gas stations at issue due to an "environmental incident" as that term is defined in the policy. Contrary to Wells Fargo's contention, the trial court correctly construed the terms of the policy in concluding that pollution conditions that were already known before the policy period and remained unchanged during the life of the policy did not constitute an environmental incident. Moreover, only upon timely receipt of proper notice that such an environmental incident had occurred, as well as that the borrower had defaulted, would Lumbermens be obligated to pay the lesser of the loan balance, the fair market value of the collateral at the time of the loan, or the estimated cleanup costs (see Insurance Law § 1101[a]; Adorable Coat Co. v Connecticut Indem. Co., 157 AD2d 366, 369 [1990]).
As the trial court found, Wells Fargo failed to give timely and proper notice of the requisite environmental incidents and failed to prove that it discovered, during the policy period, an environmental incident at four of the covered locations. It also failed to satisfy its burden of proof in establishing the collateral value loss.
The court's sua sponte reversal at trial of its earlier order granting summary judgment to Wells Fargo as to liability on the breach of contract claim does not warrant reversal (see Ungar v Ensign Bank, 196 AD2d 204, 208 [1994]). While in the summary judgment motion Wells Fargo asked for a declaration that it was entitled to coverage under the policy, the papers submitted in support of the motion did not establish the type of notice necessary to justify such a declaration. Proper notice is a prerequisite to an insurer's liability, and the failure to establish it, as a matter of law, constitutes a failure to demonstrate grounds for summary judgment on the issue of liability (see Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332 [2005]). Wells Fargo merely established that by letter dated August 22, 2002, Orix gave notice of the borrower's default in which it indicated, without any particulars, that the properties in question "may have been impacted by releases of petroleum hydrocarbons into the soil and groundwater from underground storage tanks." While the fact of that "notice" was uncontroverted, its content lacked any of the types of particulars that would qualify it as proper notice of a claimed environmental incident as required by the policy.
Notably, in deciding the summary judgment motion, the court did not address the issue of proper timely notice. The issue it addressed related to Wells Fargo's right to seek relief, based on the assertion that Lumbermens had recognized the REMIC Trust's insurable interest and valid assignment of the policy.
The law of the case rule prohibits a judge or court from modifying a ruling on the merits made by a judge or court of coordinate jurisdiction (see Matter of Haas, 33 AD2d 1, 7-8 [1969], lv denied 26 NY2d 842 [1970]). Yet, it has been said that "[e]very court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made" (Aridas v Caserta, 41 NY2d 1059, 1061 [1977]). The trial court's reconsideration of Lumbermens' liability under the contract would appear to fall under the latter category, but, even if the law of the case rule precluded the court from altering an earlier, erroneous grant of summary judgment on Wells Fargo's first cause of action, it has no binding force on appeal (see Martin v City of Cohoes, 37 NY2d 162, 165 [1975]). The trial record establishes that Wells Fargo possessed a detailed spreadsheet dated August 2002 with particulars of dates and locations of contamination for six of the seven sites at issue, and had sufficient particulars as to the seventh by October 2003. Thus, it is apparent that timely proper notice could have been, but was not, given to Lumbermens, and the holding that Lumbermens was liable as a matter of law to pay under the policy would have been reversed by this Court in any event.
The evidence Lumbermens offered at trial on the issue of notice was properly admitted, since the issue of notice had remained relevant to a determination of damages. Moreover, nothing in the record established any waiver by Lumbermens of the defense of untimely notice; nor was its disclaimer untimely.
In view of the evidence that Wells Fargo possessed information about six of the sites at issue as early as August 2002 but failed to disclose this information to Lumbermens until well after commencement of this action, and had information about the seventh in October 2003 that it failed to disclose to Lumbermens for almost a year, the trial court correctly found that Wells Fargo failed to provide timely and proper notice (see Republic N.Y. Corp. v American Home Assur. Co., 125 AD2d 247 [1986]; Ogden Corp. v Travelers Indem. Co., 924 F2d 39, 43 [2d Cir 1991]).
Even if we concluded that the notice issue was not dispositive, we would nevertheless uphold the dismissal because we agree with the trial court that Wells Fargo failed to prove its damages. To satisfy its burden, Wells Fargo had to establish, through admissible evidence, values for each of the three different measures of loss, since the court could not determine from Wells Fargo's evidence the loss created by the relevant environmental cleanup costs. Even if the court erred in striking Wells Fargo's expert testimony in connection with those environmental cleanup costs (see Santariga v McCann, 161 AD2d 320, 321-322 [1990]), we agree with the trial court that the proffered testimony was speculative and could not successfully establish such costs (see Pember v Carlson, 45 AD3d 1092, 1094 [2007]). We find no evidentiary support in the record for Wells Fargo's contention that Lumbermens breached the contract by failing to negotiate on the cleanup costs at the covered locations.
We have considered Wells Fargo's remaining arguments and find them unavailing.
John Romano v Whitehall Properties, LLC, et al .

Lustig & Brown, LLP, White Plains, N.Y. (James J. Duggan,
Michael P. Lagnado, Randolph E. Sarnacki, and John Schapp of
counsel), for appellants.
Stewart, Greenblatt, Manning & Baez, Syosset, N.Y. (Lisa
Levine and Christopher Cafaro of
counsel), for additional
defendant-respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Whitehall Properties, LLC, and Kreisler Borg Florman General Construction Co., Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kurtz, J.), dated November 19, 2007, as denied that branch of their motion which was to extinguish the workers' compensation lien asserted by the additional-defendant Travelers Indemnity Insurance Company of America.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On November 16, 2000, the plaintiff, an employee of nonparty Sorbara Construction Company (hereinafter Sorbara), was injured while working at a construction site owned by the defendant Whitehall Properties, LLC (hereinafter Whitehall). Thereafter, the plaintiff filed a claim for workers' compensation benefits, which were paid by Sorbara's Workers' Compensation carrier, Travelers Indemnity Insurance Company of America (hereinafter Travelers). The plaintiff also commenced a negligence action against Whitehall and the general contractor, Kreisler Borg Florman General Construction Co., Inc. (hereinafter Kreisler). Pursuant to a general liability policy, Travelers Indemnity paid the $2,000,000 policy limit in settlement of the negligence action, and Whitehall's excess insurer paid the remainder of the amount due under the settlement.
Contrary to the appellants' contention, the Supreme Court properly determined that Travelers' assertion of a workers' compensation lien against the settlement to which it contributed as the general liability carrier would not violate the anti-subrogation rule (see Workers' Compensation Law § 29[1]). "Pursuant to the antisubrogation rule, [a]n insurer . . . has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered'" (Lodovichetti v Baez, 31 AD3d 718, 719, quoting North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294). However, since Travelers' obligation to pay workers' compensation benefits to Sorbara's employee did not arise under the general liability policy under which it was defending Whitehall and Kreisler in the negligence action, but rather under a separate policy issued to Sorbara, Travelers was not seeking a right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered (see Hartford Acci. & Indem. Co. v Michigan Mut. Ins. Co., 61 NY2d 569; McGurran v DiCanio Planned Dev. Corp., 216 AD2d 538; cf. North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281).
The appellants' remaining contentions are without merit.
MASTRO, J.P., FLORIO, COVELLO and BELEN, JJ., concur.
ENTER:

Miraglia, v H & L Holding Corp.

Mauro Goldberg & Lilling LLP, Great Neck (Matthew W.
Naparty of counsel), for appellant-respondent.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac
of counsel), for respondent-appellant.
Order, Supreme Court, Bronx County (George D. Salerno, J.), entered October 9, 2007, which, to the extent appealed from as limited by the briefs, denied third-party defendant's motion for an amended judgment providing recovery by plaintiff only from defendant, and amended judgment, same court and Justice, entered October 29, 2007, awarding plaintiff damages against both defendant and third-party defendant in the principal amount of $18,097,112.15, unanimously affirmed, without costs.
Plaintiff was employed by third-party defendant contractor. As noted on prior appeals (306 AD2d 58 [2003]; 36 AD3d 456 [2007], lv denied 10 NY3d 703), he was working on a residential structure on land owned by defendant when he fell from planks used to span a trench and provide access to foundation walls, and was impaled by a steel bar from the scrotum to L2 on his spinal cord, resulting in paraplegia and associated complications. In a separate action, plaintiff recovered over $6 million from defendant's insurer, with defendant retaining the right to contractual indemnification.
After the 2007 appeal, third-party defendant asserted for the first time that since it was plaintiff's employer, the court could not enter a judgment in which plaintiff was granted a right to recover directly against it because the worker's compensation paid to plaintiff was his exclusive remedy. The first judgment, affirmed in the 2007 appeal except for future pain and suffering damages (for which plaintiff stipulated to a reduction), also provided plaintiff with a direct recovery against third-party defendant, which failed to raise any objection based on worker's compensation exclusivity at that time.
A defense of worker's compensation exclusivity is waived if the employer ignores the issue "to the point of final disposition itself" (Murray v City of New York, 43 NY2d 400, 407 [1977]), especially where belated assertion of the defense will prejudice the party opposing the assertion (see Shine v Duncan Petroleum Transp., 60 NY2d 22, 27-28 [1983]). Here, not only did third-party defendant fail to raise this objection to the judgment on the 2007 appeal (see Harbas v Gilmore, 214 AD2d 440 [1995], lv dismissed 87 NY2d 861 [1995]), but it assumed defense of the direct defendant at trial, after the latter had successfully moved in limine for contractual indemnification while instructing its accountant - unbeknownst to plaintiff - to file for dissolution. Plaintiff was thus denied the opportunity to object to third-party defendant's representation of the direct defendant while reserving its worker's compensation exclusivity defense, or to otherwise protect his position. This is unacceptable. Worker's compensation exclusivity is important as a matter of state public policy, but so is the finality of the result when a party charts its own course.
It does not avail third-party defendant to assert that it could not have waived this argument because it goes to jurisdiction. While lack of subject matter jurisdiction can be raised at any time, it is still within a New York court's power "to entertain the case before it" (Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718 [1997]; see also Matter of Rougeron, 17 NY2d 264, 271 [1966], cert denied 385 US 899 [1966]). Here, third-party defendant is not arguing that Supreme Court "never had power to hear a particular type of proceeding in the first place" (see Security Pac. Natl. Bank v Evans, 31 AD3d 278, 280 [2006], appeal dismissed 8 NY3d 837 [2007]). Waiver of an argument will be recognized where, as here, "the court had jurisdiction of the general subject matter but a contention is made after judgment that the court did not have power to act in the particular case or as to a particular question in the case" (see Rougeron, 17 NY2d at 271). Nor is third-party defendant persuasive in arguing - for the first time on appeal - that Supreme Court lacked personal jurisdiction over it. Supreme Court has always had the power to render an adjudication over third-party defendant (see Security Pac. Natl. Bank, 31 AD3d at 280), which surely would not have assumed the defense of the direct defendant at trial if it believed the court lacked personal jurisdiction over it.
Because we are not granting relief to third-party defendant on the main appeal, we need not address any of the arguments with respect to plaintiff's conditional cross appeal.
Clarendon National Insurance Co. v  Atlantic Risk Management, Inc.

Babchik & Young, LLP, White Plains (Jordan M. Sklar of
counsel), for appellant.
Herrick, Feinstein LLP, New York (David L. Fox of counsel),
for respondent.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered December 19, 2007, which, insofar as appealed from as limited by the brief, declined to compel plaintiff to produce certain documents sought by defendant, unanimously modified, on the law and the facts, to direct plaintiff to make available for inspection or produce copies of all its claims files in which defendant acted as its third-party claims administrator (TPA) from 1997 to 2005, with each party bearing its own expenses, and otherwise affirmed, without costs.
Order, same court and Justice, entered December 19, 2007, which, insofar as appealed from as limited by the brief, denied defendant's motion to compel plaintiff to comply with certain of its discovery demands, including documents requested in defendant's First and Second Sets of discovery demands, unanimously modified, on the law and the facts, to direct plaintiff to make available for inspection or produce copies of all its claims files in which defendant acted as its TPA from 1997 to 2005, with each party bearing its own expenses, and otherwise affirmed, without costs.
Order, same court and Justice, entered July 17, 2008, which, insofar as appealable, declined to consider defendant's motion to compel compliance with its Third and Fourth Sets of discovery demands, unanimously modified, on the law and the facts, the motion granted to the extent of directing plaintiff to make available for inspection or produce copies of all its claims files in which defendant acted as its TPA from 1997 to 2005, with each party bearing its own expenses, and otherwise affirmed, without costs.
Order, same court and Justice, entered August 7, 2008, which, insofar as appealed from as limited by the brief, denied without prejudice defendant's motion to compel plaintiff to comply with its Fifth Set of discovery demands, unanimously modified, on the law and the facts, to direct plaintiff to produce copies of any applicable reinsurance policies, and otherwise affirmed, without costs.
Many of defendant's requests for production, including its requests for all plaintiff's claims files in which plaintiff either agreed or disagreed with any of its TPAs' coverage recommendations and all plaintiff's claims files containing key words such as "coverage," were overbroad and unduly burdensome (see e.g. Belco Petroleum Corp. v AIG Oil Rig, 179 AD2d 516, 517 [1992]). Nonetheless, to the extent plaintiff's action is premised on contentions that it consistently relied on and approved defendant's coverage recommendations, its claims handling practices are relevant to defendant's defense (see Dias v Consolidated Edison Co. of N.Y., 116 AD2d 453 [1986]; Austin v Calhoon, 51 AD2d 958 [1976]). We find that directing plaintiff to produce all claims files in which defendant acted as TPA strikes an appropriate balance between defendant's legitimate interests in discovery of plaintiff's claims handling practices and coverage denial patterns and the burdensomeness and intrusiveness of its demands (see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 747 [2000]). We see no reason to deviate from the general rule that, during the course of the action, each party should bear the expenses it incurs in responding to discovery requests (see Waltzer v Tradescape & Co., L.L.C., 31 AD3d 302, 304 [2006]).
As to defendant's request for information relating to reinsurance policies available to Clarendon with respect to the claims at issue in this litigation, CPLR 3101(f) entitles defendant to copies of the applicable reinsurance policies
themselves (see Anderson v House of Good Samaritan Hosp., 1 AD3d 970 [2003]).
We have considered defendant's remaining contentions and find them unavailing.
I & R Realty Management, Inc. v Transcontinental Insurance Company

Scott Baron & Associates, P.C., Howard Beach, N.Y. (Stephen
D. Chakwin and Andrea A. Palmer of counsel), for appellants.
Colliau Elenius Murphy Carluccio Keener & Morrow, New
York, N.Y. (Marian S. Hertz of
counsel), for respondents.


DECISION & ORDER
In an action, inter alia, for a judgment declaring that certain losses allegedly sustained by the plaintiffs are covered under insurance policies issued by the defendant Transcontinental Insurance Company, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Bellantoni, J.), entered May 29, 2008, which granted the defendants' motion for summary judgment and denied their cross motion for summary judgment on the complaint, and (2) a judgment of the same court entered June 9, 2008, which, upon the order, is in favor of the defendants and against them, dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is modified, on the law, by adding a provision thereto declaring that the alleged losses are not covered under the insurance policies issued by the defendant Transcontinental Insurance Company; as so modified, the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
On their motion for summary judgment, the defendants demonstrated their entitlement to judgment as a matter of law by establishing that the "earth movement" exclusion in the plaintiffs' insurance policies clearly and unambiguously applied to the plaintiffs' alleged losses (see Labate v Liberty Mut. Ins. Co., 45 AD3d 811, 812; Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d 415, 417). In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562). Accordingly, the Supreme Court properly granted the defendants' motion.
The plaintiffs' remaining contention is without merit.
Since this is a declaratory judgment action, the Supreme Court's judgment should have included an appropriate declaration in favor of the defendants (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
PRUDENTI, P.J., DILLON, COVELLO and LEVENTHAL, JJ., concur.
Steven Gary v  Flair Beverage Corp.
Carol R. Finocchio, New York, for appellants.
DeAngelis & Hafiz, Mount Vernon (Talay Hafiz of counsel),
for Steven Gary, respondent.
Rende, Ryan & Downes, LLP, White Plains (Roland T. Koke
of counsel), for JJ's on Broadway Beer & Soda Corp.,
respondent.
Orders, Supreme Court, Bronx County (John A. Barone, J.), entered June 23 and September 30, 2008, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint, and dismissed the third-party complaint, unanimously modified, on the law, defendants' motion granted to the extent of dismissing the complaint as against defendant Flair Beverage and the claims based on common law negligence and Labor Law § 200 as against defendant 3835 9th Avenue Realty, third-party defendant's cross motion denied with respect to the third-party claim of 3835, 3835's motion for summary judgment against third-party defendant on the third-party claim for breach of contract to procure insurance and conditional summary judgment for contractual indemnification granted, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
With regard to the Labor Law § 200 and common-law negligence claims, plaintiff failed to raise an issue of fact as to whether defendants supervised, directed or controlled the work performed, or had actual or constructive notice of a dangerous condition at the work site (see Mitchell v New York Univ., 12 AD3d 200 [2004]). Indeed, plaintiff's failure to address this issue in its responding brief indicates an intention to abandon this basis of liability (see e.g. Brown v Christopher St. Owners Corp., 2 AD3d 172, 173 [2003], lv dismissed 1 NY3d 622 [2004]).
With regard to the claims under Labor Law § 240(1) and 241(6), there is no evidence that Flair, a tenant in the building where the alleged accident occurred, contracted for or otherwise had the right or the authority to control plaintiff's work (see Guzman v L.M.P. Realty Corp., 262 AD2d 99 [1999]). Contrary to plaintiff's contention, defendants preserved their argument that plaintiff was not engaged in an activity protected by § 240(1). In any event, the court properly denied that branch of defendants' motion for summary judgment dismissing plaintiff's
§ 240(1) claim as against 3835, the owner of the building, since an issue of fact existed as to whether plaintiff was doing more than merely changing a light bulb, and thus was doing "repair" work within the meaning of the statute (see e.g. Clemente v Grow Tunneling Corp., 235 AD2d 331 [1997]).
The IAS court properly denied that branch of defendants' motion for summary judgment dismissing the § 241(6) claim as against 3835 since an issue of fact exists as to whether plaintiff was engaged in repair work within the meaning of 12 NYCRR 23-1.4(b)(13), and was thus protected under § 241(6) (see e.g. Piccione v 1165 Park Ave., 258 AD2d 357, 358 [1999], lv dismissed 93 NY2d 957 [1999]).
Contrary to third-party defendant's contention, defendants may appeal from the order granting the cross motion for summary dismissal of the third-party complaint. While no appeal lies from an order granted upon the default of an aggrieved party (CPLR 5511; Flake v Van Wagenen, 54 NY 25 [1873]), here the court did not grant the third-party defendant's cross motion on default. Although defendants failed to preserve their arguments with respect to 3835's contractual indemnification claim (see e.g. Omansky v Whitacre, 55 AD3d 373, 374 [2008]), this Court can review them nonetheless because they are legal in nature and apparent on the face of the record (Gerdowsky v Crain's N.Y. Bus., 188 AD2d 93, 97 [1993]), particularly since both parties sought judgment as a matter of law on this claim.
3835's third-party claim for contractual indemnification was improperly dismissed as barred by Workers' Compensation Law § 11. Because it is undisputed that the parties entered into the lease containing the indemnification provision prior to the date of plaintiff's accident, § 11 presents no obstacle to indemnification (see e.g. Portelli v Trump Empire State Partners, 12 AD3d 280, 281 [2004]; see also Acosta v S.L. Green Mgt. Corp., 267 AD2d 67, 68 [1999]). Nor is the claim barred by General Obligations Law §§ 5-321 and 5-322.1. Where, as here, a commercial lease negotiated between sophisticated business entities contains an insurance provision allocating the risk of liability to a third party, the indemnification clause is valid and enforceable and does not violate the General Obligations Law (see Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412 [2006]; see also Mennis v Commet 380, Inc., 54 AD3d 641, 642 [2008]). Nor is "the absence of a contractual provision expressly limiting [3835's] recovery to [JJ's] insurance coverage fatal" (Great N. Ins., 7 NY3d at 419 n 4). Since the indemnification provision plainly contemplates a showing of negligence by third-party defendant, and there are issues of fact as to that negligence, 3835 is entitled to conditional summary
judgment on its contractual indemnification claim (see e.g. McCarthy v Turner Constr., Inc., 52 AD3d 333 [2008]; Steakin v Voicestream Wireless Corp., 39 AD3d 424 [2007]). 3835 is also entitled to counsel fees and costs pursuant to the broad language of the indemnification clause (see Breed, Abbott & Morgan v Hulko, 139 AD2d 71, 75-76 [1988], affd 74 NY2d 686 [1989]; Boshnakov v Board of Educ. of Town of Eden, 302 AD2d 857 [2003]).
3835's third-party claim for breach of contract for failure to procure insurance was improperly dismissed. Since third-party defendant does not address this issue in its brief and does not dispute that it failed to procure the requisite insurance, 3835 is entitled to summary judgment on that claim (see Crespo v Triad, 294 AD2d 145, 148 [2002]).
Escobar v. Guzman

Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Colin F. Morrissey of counsel), for appellants.
The Edelsteins, Faegenburg & Brown, LLP, New York (Evan
M. Landa of counsel), for respondent.
Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about December 11, 2007, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants met their initial burden of establishing prima facie that plaintiff's alleged injuries did not satisfy the no-fault serious injury threshold (Insurance Law § 5102[d]). Defendants' expert concluded that plaintiff suffered from degenerative disc disease. This was based on his review of the MRI performed at the facility of plaintiff's expert, Dr. Roskin, on June 7, 2004. Although defendants failed to address the latter's contemporaneous MRI examination report of herniated discs, a finding of degenerative disc disease is not inconsistent with the claimed herniations.
Plaintiff in opposition raised a triable issue of fact through the affirmed report of Dr. Augustyniak and the MRI report of Dr. Roskin (see Prestol v McKissock, 50 AD3d 600 [2008]). Similarly, the affirmed letters of Dr. Patel as to plaintiff's inability to resume work until September 2005 sufficiently raised a factual issue as to the 90/180 category.
Cruz v. Aponte

Belovin & Franzblau, LLP, Bronx (Fernando M. Leal of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered December 18, 2007, which granted defendant's motion for summary judgment dismissing the complaint on the issue of threshold injury, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about December 17, 2007, which denied plaintiff's motion for summary judgment on the issue of liability, unanimously dismissed, without costs, as academic.
Defendant met his initial burden of demonstrating absence of any permanent or significant consequential physical limitations to plaintiff's right knee by submitting the affirmed reports of a radiologist who opined that no meniscal tears were shown in the MRI, and an orthopedist who found no significant limitation in range of motion. The radiologist did observe a "vague linear signal change . . . in the posterior horn of the lateral meniscus" that was "most likely indicative of grade II mucoid degenerative signal change," and the orthopedist noted that a minor limitation in range of motion was attributable to plaintiff's obesity.
In opposition, plaintiff submitted the affirmation of a physician who, relying on an MRI report prepared shortly after the accident, found multiple meniscal tears of the right knee, for which surgery would be indicated if plaintiff could lose weight, and opined that the tears and limitations were traumatic in origin. The physician also concluded, based on an examination conducted more than three years after the accident, that objective tests demonstrated significantly limited range of motion. However, his examination, unaccompanied by the requisite quantitative assessment of range-of-motion limitations based on objective testing contemporaneous to the time of the accident, was insufficient to raise an issue of fact as to serious injury (Lopez v Simpson, 39 AD3d 420 [2007]). Nor did he address the findings of degenerative change in the knee made by both defendant's radiologist and a radiographer who reported to the clinic that treated plaintiff after the accident (Style v Joseph, 32 AD3d 212 [2006]; see Mullings v Huntwork, 26 AD3d 214, 216 [2006]). Accordingly, plaintiff failed to raise an issue of fact as to whether she suffered the type of injury from the 2004 accident that constituted a permanent consequential limitation of the use of her right knee.
With respect to the 90/180-day serious-injury claim, defendant met his initial burden by relying on plaintiff's deposition testimony that she was unable to perform her usual and customary activities for just five weeks following the accident. In opposition, plaintiff submitted an affidavit stating she was so restricted for five months, but the affidavit clearly contradicts her deposition testimony, and appears to have been tailored to avoid its consequences (see Blackmon v Dinstuhl, 27 AD3d 241 [2006]). Even assuming the deposition testimony was in error, plaintiff's affidavit was unsupported by "competent medical proof that directly substantiated the claim" that she could not perform substantially all her daily activities for 90 of the first 180 days following the accident due to a non-permanent injury or impairment as a result of the accident (see Uddin v Cooper, 32 AD3d 270, 272 [2006], lv denied 8 NY3d 808 [2007]). Therefore, the alternate serious injury claim was also properly dismissed, rendering the issue of liability academic.